EXHIBIT 10.5
EXECUTION COPY
AMENDMENT NO. 1 AND WAIVER TO LOAN AGREEMENT
AMENDMENT NO. 1 AND WAIVER TO LOAN AGREEMENT (this "Amendment")
dated as of April 27, 2005 by and among World Airways, Inc. (the "Borrower"),
World Air Holdings, Inc. ("Parent"), North American Airlines, Inc. ("North
American"), World Airways Parts Company, LLC, Govco Incorporated, as Primary
Tranche A Lender ("Govco"), Citicorp North America, Inc., as Govco
Administrative Agent (the "Govco Administrative Agent"), the other Lenders party
hereto, Citibank, N.A., as Agent for the Lenders (in such capacity, together
with its successors and permitted assigns, the "Agent") Citibank, N.A., as
Collateral Agent (in such capacity, together with its successors and permitted
assigns, the "Collateral Agent," and together with the Agent, the "Agents"),
International Lease Finance Corporation, as Supplemental Guarantor (the
"Supplemental Guarantor"), and the Air Transportation Stabilization Board (the
"Board") created pursuant to the Air Transportation Safety and System
Stabilization Act (the "Act"), P.L. 107-42 (2001), as the same may be amended
from time to time. Capitalized terms used in this Amendment but not otherwise
defined herein have the meanings given to such terms in the Loan Agreement (as
such term is defined herein).
WITNESSETH:
WHEREAS, the Borrower, the Board, the Agents, the Lenders referred
to therein and Phoenix American Financial Services Inc., as Loan Administrator,
executed and delivered that certain Loan Agreement dated as of December 30, 2003
(as amended, supplemented or otherwise modified through the date hereof, the
"Loan Agreement") pursuant to which the Lenders made a loan to Borrower in the
amount of $30,000,000;
WHEREAS, on January 10,2005, Parent and Borrower consummated a
restructuring transaction pursuant to which all of the outstanding shares of
common stock of the Borrower were automatically converted into shares of common
stock of Parent, which resulted in Borrower becoming a wholly-owned subsidiary
of Parent, and in connection therewith, Parent executed and delivered, inter
alia, that certain Joinder Agreement dated as of January 10, 2005 pursuant to
which Parent became an Obligor under, and agreed to be bound by the terms and
provisions of, the Loan Agreement;
WHEREAS, pursuant to that certain Stock Purchase Agreement dated as
of April 27, 2005 (the "Stock Purchase Agreement") among Parent, North American,
and Xxx XxXxxxxx, individually and as trustee of the Xxx and Xxxxxx XxXxxxxx
Family Trust dated January 15, 2005 (the "Seller"), Parent has acquired all of
the outstanding shares of common stock of North American (the "Acquisition");
WHEREAS, in connection with the Acquisition, Borrower and Parent
have requested that certain provisions of the Loan Agreement be amended or
waived as hereinafter provided; and
WHEREAS, the Board, the Agents and the Lenders are willing to amend
the Loan Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants
and agreements contained herein, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO LOAN AGREEMENT. As of the Amendment
Effective Date (as defined in Section 4 below), the Loan Agreement is hereby
amended as follows:
(a) Definitions.
(i) Section 1.1 of the Loan Agreement is hereby amended by
adding the following new definitions in the proper alphabetical order:
"North American" means North American Airlines, Inc., a
Delaware corporation and wholly owned Subsidiary of Parent, together
with its successors and permitted assigns.
"North American AMC Agreement" means, collectively, any
agreement or purchase order between the Air Mobility Command and
North American (or any other party acting on its behalf, whether in
connection with a teaming arrangement or otherwise) for airlift
services, including, without limitation, that certain agreement
identified as contract number FA4428-04-D-0022, together with any
amendments, restatements, renewals, replacements, successors or
modifications of any of the foregoing.
"Parent Guarantee" means the Parent Guarantee dated as of
January 10, 2005 made by Parent in favor of the Guaranteed Parties
(as defined therein).
"Payroll Accounts" has the meaning specified in Section
6.4(a).
(ii) Section 1.1 of the Loan Agreement is hereby amended by
amending and restating in its entirety the definition of "Obligor" as follows:
"Obligor" means Parent, the Borrower or North American, and
"Obligors" means all of Parent, the Borrower and North American,
together with their respective successors and permitted assigns.
(iii) Section 1.1 of the Loan Agreement is hereby amended by
amending and restating in its entirety the definition of "Security Agreement" as
follows:
"Security Agreement" means the Mortgage and Security Agreement
dated as of December 30, 2003 among the Borrower, World LLC and the
Collateral Agent, as amended and restated by that certain Amended
and Restated Mortgage and Security Agreement dated as of April 27,
2005 among the Borrower, Parent, North American, World LLC and the
Collateral Agent, as the same may be amended, supplemented or
otherwise modified from time to time, including by any Security
Agreement Supplement.
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(b) Amendment to Section 2.3. Section 2.3 of the Loan Agreement is
hereby amended by replacing the chart set forth in such Section with the
following chart:
Interest Payment Date falling on or
about: Principal Amount
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December 12, 2005 $6,000,000.00
June 12, 2006 $5,000,000.00
December 12, 2006 $5,000,000.00
June 12, 2007 $5,000,000.00
December 12, 2007 $5,000,000.00
June 12, 2008 $4,000,000.00
(c) Amendment to Section 5.17. Section 5.17 of the Loan Agreement
is hereby amended by renumbering the existing clause (ii) in the last sentence
thereof as clause (iii) and inserting a new clause (ii) as follows: "(ii)
pledged under the Security Agreement which are maintained with financial
institutions in the United States and which contain, in the aggregate, no more
than $250,000".
(d) Amendment to Section 6.4(a). Section 6.4(a) of the Loan
Agreement is hereby amended and restated in its entirety as follows:
The Obligors shall not permit the reserve of unrestricted Cash
and Cash Equivalents (which in each case shall be free from all
Liens other than Permitted Encumbrances of the type described in
clause (vii) of the definition of Permitted Encumbrances) of the
Obligors and their Restricted Subsidiaries to be less than
$15,000,000; it being understood that the following shall be
excluded from unrestricted Cash and Cash Equivalents for the
purposes of this Section 6.4(a): (i) Cash or Cash Equivalents
securing obligations in respect of letters of credit that are
collateralized by Cash or Cash Equivalents, if any, and (ii) Cash or
Cash Equivalents held in any payroll account of any of the Obligors
(collectively the "Payroll Accounts"), including without limitation
North American's payroll account with account number 0000000 at
Citibank, N.A and Borrower's payroll account with account number
2079920018648 at Wachovia Bank, N.A.
(e) Amendment to Article VI. Article VI of the Loan Agreement is
hereby amendment by inserting a new Section 6.18 and a new Section 6.19 as
follows:
Section 6.18 Prohibition on Borrower Guarantees. Neither the
Borrower nor any of its Restricted Subsidiaries shall Guarantee or
assume any obligation of North American or any Restricted Subsidiary
of North American, including, without limitation, under any aircraft
lease or other financing arrangement. For the avoidance of doubt, it
is acknowledged and agreed that the foregoing shall not prohibit the
Borrower or any of its Restricted Subsidiaries from making capital
contributions or equity investments or advances, loans or other
extensions of credit to North American or any Restricted Subsidiary
of North American so long as such contributions, equity investments,
advances, loans or other extensions of
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credit are not made for the purpose of Guaranteeing or assuming an
obligation of North American.
Section 6.19 Payroll Accounts. The Obligors shall not fund any
Payroll Account other than in the ordinary course of business for
the purpose of meeting current payroll obligations.
(f) Amendments to Section 7.1.
(i) Section 7.1 of the Loan Agreement is hereby amended by
amending and restating subsection (1) thereof in its entirety as follows:
(1) A Subsidiary Guarantee or the Parent Guarantee shall
for any reason cease to be in full force and effect or any Person
that is a guarantor thereunder shall, in writing, repudiate such
Subsidiary Guarantee or Parent Guarantee, as the case may be, or
deny that its obligations thereunder are valid, binding and
enforceable; or
(ii) Section 7.1 of the Loan Agreement is hereby amended by
inserting new subsections (t) and (u) after subsection (s) thereof and replacing
the "." after subsection (s) with "; or":
(s) Any default by North American under the North
American AMC Agreement or any team agreement related thereto, which
default is not waived or remedied prior to the expiration of any
period of grace provided with respect thereto and which results in
(i) North American being suspended or disqualified from the
performance of airlift services thereunder or (ii) the termination
of any such agreements with respect to North American, and which
suspension, disqualification or termination has had, or could
reasonably be expected to have, a Material Adverse Effect; or
(t) Any representation and warranty contained in that
certain Stock Purchase Agreement dated as of April 27, 2005 among
Parent, North American and Xxx XxXxxxxx, individually and as trustee
of the Xxx and Xxxxxx XxXxxxxx Family Trust dated January 15, 2005
made by Seller (as defined therein) thereunder or in connection
therewith shall prove not to have been true and correct as and when
made by Seller, and the failure of such representation and warranty
to be true and correct shall have had a Material Adverse Effect.
(g) Amendment to Section 10.4. Section 10.4 of the Loan Agreement
is hereby amended by replacing the words "Borrower and Parent" in the second
line thereof with "Obligors".
(h) Amendment to Schedule 6.1. Schedule 6.1 of the Loan Agreement
is hereby amended to add the items described in Exhibit A attached hereto.
(i) Amendment Reflecting New Obligor. Each reference in the Loan
Agreement and the other Loan Documents to (i) "either Obligor" and "either of
the Obligors" is
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hereby amended to read "any Obligor" and "any of the Obligors," respectively and
(ii) "neither Obligor" and "neither of the Obligors" is hereby amended to read
"no Obligor" and "none of the Obligors," respectively. All other words or
phrases in the Loan Agreement and the other Loan Documents of like import shall,
mutatis mutandis, mean and be a reference to all of the Obligors.
SECTION 2. WAIVERS. The provisions of Sections 6.2, 6.5, 6.8 and
6.11 of the Loan Agreement are waived to the extent necessary to permit the
Borrower and Parent to consummate and perform their respective obligations with
respect to the Acquisition.
SECTION 3. NORTH AMERICAN JOINDER TO LOAN AGREEMENT. By execution of
this Amendment, North American hereby expressly agrees (a) that it is, and shall
be deemed for all purposes to be, an Obligor under the Loan Agreement and the
Loan Documents, and (b) to be bound by the terms, conditions and obligations set
forth therein, with the same force and effect as if it had been an original
signatory thereto. For purposes of Section 10.7 of the Loan Agreement, all
notices to be delivered to North American under the Loan Documents should be
sent to the following address:
North American Airlines, Inc.
c/o World Airways, Inc.
HLH Building
000 Xxxxx Xxxxx
Xxxxxxxxx Xxxx, Xxxxxxx 00000
Attention: General Counsel
Phone: 000-000-0000
Facsimile: 000-000-0000
SECTION 4. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective as of the date set forth above (the "Amendment Effective Date")
subject to the satisfaction of the following conditions precedent on or prior to
the date hereof:
(a) the Stock Purchase Agreement and all other agreements and
documents being delivered in connection therewith shall (i) be in form and
substance satisfactory to the Agents, the Lenders, the Supplemental Guarantor
and the Board, and (ii) shall have been duly executed and delivered by the
parties thereto;
(b) the Acquisition and the other transactions contemplated by the
Stock Purchase Agreement shall have been consummated and become effective;
(c) the Agents, the Lenders, the Supplemental Guarantor and the
Board shall have received each of the following, each dated as of the date
hereof, in form and substance satisfactory to the Agents, the Board, the Lenders
and the Supplemental Guarantor:
(i) this Amendment, duly executed and delivered by the parties
hereto;
(ii) the Amended and Restated Mortgage and Security Agreement
among the Borrower, Parent, North American, World LLC and the Collateral Agent
(the
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"Amended and Restated Security Agreement"), duly executed and delivered by the
parties thereto;
(iii) a Subsidiary Guarantee, duly executed and delivered by
North American and the other parties thereto;
(iv) the favorable opinions of (A) Xxxxxx Xxxxxxxxx LLP,
special counsel to the Borrower; (B) Xxxx XxXxxxxx, internal counsel to the
Borrower; and (C) Daugherty, Fowler, Peregrin & Xxxxxx, FAA counsel to the
Borrower; and (D) a reliance letter from Xxxxxxx Xxxxxx XxXxxxx Xxxxx, counsel
to the Seller; (E) a reliance letter from Ford & Xxxxxxxx LLP, labor counsel to
the Borrower; and (F) a reliance letter from Xxxxxx Xxxxxxxxx LLP, special
counsel to the Borrower with respect to their opinion regarding the Acquisition;
and
(v) a certificate of each of the Parent and Borrower signed by
a duly authorized officer of such Person certifying (i) as to the matters set
forth in Section 6 of this Amendment, (ii) the due execution and delivery of
this Amendment by such Obligor, (iii) the names and true signatures of each
officer of such Person who has been authorized to execute and deliver this
Amendment on behalf of such Obligor, and (iv) the resolutions of such Obligor's
board of directors approving and authorizing the execution, delivery and
performance of this Amendment; and
(d) the Obligors shall have taken all action and completed or
presented to the Collateral Agent for filing and recording all notices,
recordings and filings of or with respect to the Amended and Restated Security
Agreement and the Collateral covered thereby, that are necessary or desirable in
order to perfect and protect the security interest of the Collateral Agent in
the Collateral, including, without limitation, (i) the submission of the Amended
and Restated Security Agreement (and any other required instruments and
documents) to the FAA for recordation; (ii) the preparation and submission to
the Collateral Agent for filing of Uniform Commercial Code financing statements
in all applicable jurisdictions; (iii) delivery to the Collateral Agent of the
certificates representing all of the shares of common stock of North American
together with duly executed and undated stock powers; (iv) the submission to the
Collateral Agent for filing of an IP Security Agreement with the U.S. Patent and
Trademark Office, the U.S. Copyright Office or any other applicable U.S.
Governmental Authority with respect to the intellectual property Collateral
covered thereby; and (v) the execution and delivery of Control Agreements with
respect to the deposit accounts and securities accounts of North American (other
than the deposit accounts and securities accounts identified on Schedule 2.09 to
the Security Agreement).
SECTION 5. CONSENT TO EXECUTION. By their respective signatures
hereto, each of the parties hereto consents to the execution of this Amendment
and confirms that each of the conditions precedent in Section 4 hereof has been
satisfied (or waived).
SECTION 6. POST-CLOSING OBLIGATIONS.
(a) Within thirty (30) days following the Amendment Effective
Date, the Parent shall deliver to the Board a fully executed Control Agreement
in form and substance reasonably satisfactory to the Board with respect to North
American's account with account
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number 000-000-000 at JPMorgan Chase Bank (or with respect to any account in
substitution or replacement thereof) together with opinions of counsel from
counsel satisfactory to the Board, in form and substance satisfactory to the
Board;
(b) Within ninety (90) days following the Amendment Effective
Date, the Parent shall deliver to the Board a consent from (i) Iceland Air with
respect to the lease of office space located at Terminal E, Xxxxx Airport, E.
Boston, Massachusetts and (ii) from the City of Oakland with respect to the
lease of office and counter space located at Oakland International Airport; and
(c) Within seven (7) days following the Amendment Effective Date,
the Borrower shall deliver to the Board a certificate from the Secretary of
State of the State of Delaware attesting to the good standing of the Borrower.
SECTION 7. REPRESENTATIONS AND WARRANTIES. Each of Parent and the
Borrower represents and warrants to each other party hereto that:
(a) it has all requisite corporate power and authority to enter
into this Amendment and to carry out the transactions contemplated hereby;
(b) it has duly authorized by all necessary corporate or other
action the execution, delivery and performance of this Amendment;
(c) this Amendment and the Loan Agreement as amended hereby are
its valid and binding obligations, enforceable against it in accordance with
their respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws relating
to or affecting the enforcement of creditors' rights generally;
(d) both before and after giving effect to this Amendment, no
Default or Event of Default has occurred and is continuing; and
(e) North American and each "principal" thereof (as such term is
defined in 31 CFR Section 19.105, as amended or modified from time to time) is
not presently debarred, suspended, proposed for debarment, declared ineligible,
or voluntarily excluded from participation in the transactions contemplated by
the Loan Documents by any Federal department or agency.
SECTION 8. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
(a) On and after the Amendment Effective Date, each reference in
the Loan Agreement to "this Agreement", "hereunder", "hereof or words of like
import referring to the Loan Agreement, and each reference in the other Loan
Documents to "the Loan Agreement", "thereunder", "thereof or words of like
import referring to the Loan Agreement, shall mean and be a reference to the
Loan Agreement as amended by this Amendment.
(b) This Amendment shall not constitute an amendment of or waiver
to any other provision, term or condition of the Loan Agreement or any other
Loan Document. Except as modified hereby and pursuant to the Amended and
Restated Security Agreement, all terms,
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provisions, covenants, representations, warranties, agreements and conditions
contained in the Loan Agreement, the Loan Documents and the Board Guarantee
shall remain in full force and effect.
(c) Notwithstanding anything contained in this Amendment, the
terms of this Amendment are not intended to and do not serve to effect a
novation as to the Loan Agreement and the other Loan Documents. The parties to
this Agreement expressly do not intend to extinguish the Loan Agreement or any
of the other Loan Documents. Instead, it is the express intention of the parties
to this Amendment to reaffirm the obligations created under the Loan Agreement
and the other Loan Documents. Each of the Loan Agreement and the other Loan
Documents, as amended hereby, remains in full force and effect and the terms and
provisions of the Loan Agreement and the other Loan Documents, as amended
hereby, are hereby ratified and confirmed. Each of the Board Guarantee and the
Supplemental Guarantee remains unchanged and in full force and effect, and the
terms and provisions thereof are hereby ratified and confirmed.
SECTION 9. CONSENT OF GUARANTORS; CONFIRMATION OF GUARANTEES. Each
of Parent and the Subsidiary Guarantor hereby consents to this Amendment and
hereby confirms and agrees that notwithstanding the effectiveness of this
Amendment, each of the Parent Guarantee and Subsidiary Guarantee is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects.
SECTION 10. INDEMNIFICATION. The Obligors agree, jointly and
severally, to defend, indemnify, pay and hold harmless the ATSB, the Agents, the
Lenders, the Supplemental Guarantor and their respective Affiliates, officers,
directors, employees, agents and advisors (collectively called the
"Indemnitees") from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including without limitation the
reasonable fees and disbursements of counsel for such Indemnitees) that may be
imposed on, incurred by, or asserted against any such Indemnitee, in any manner
arising out of or relating to the Stock Purchase Agreement and the transactions
contemplated thereby (including, without limitation, the Acquisition). For the
avoidance of doubt, the parties hereto acknowledge and agree that this indemnity
is in addition to, and not in lieu of, the indemnity provided in Section 10.4 of
the Loan Agreement.
SECTION 11. COSTS; EXPENSES. The Borrower agrees to pay on demand
all reasonable costs and expenses of the Board, the Agents, the Lenders and the
Supplemental Guarantor in connection with the preparation, execution, delivery
and administration, modification and amendment of this Amendment and the other
instruments and documents to be delivered hereunder (including, without
limitation, the reasonable fees and expenses of counsel for the Board, the
Agents, the Lenders and the Supplemental Guarantor) in accordance with the terms
of Section 10.3 of the Loan Agreement.
SECTION 12. EXECUTION IN COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page
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to this Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment.
SECTION 13. GOVERNING LAW. This Agreement and the rights and
obligations of the parties hereto shall be governed by, and construed in
accordance with, the law of the State of New York; provided, that in the event
the Board becomes a Lender pursuant to the Board Guarantee, the rights and
obligations of the Board hereunder shall be governed by, and construed in
accordance with, the Federal law of the United States of America, if and to the
extent such Federal law is applicable, and otherwise in accordance with the law
of the State of New York.
SECTION 14. RELEASE. The Obligors acknowledge and agree that they
have no claims, counterclaims, offsets or defenses to the Loan Documents or any
transaction related thereto or the performance of the Obligors' obligations
thereunder. To the extent the Obligors have any such claims, counterclaims,
offsets or defenses to the Loan Documents or any transaction related thereto or
the performance of the Obligors' obligations thereunder, the same are hereby
waived, relinquished and released in consideration of the execution and delivery
of this Amendment by the Board, the Lenders, the Agents and the Supplemental
Guarantor.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
WORLD AIR HOLDINGS, INC.
By: /s/
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Name:
Title:
WORLD AIRWAYS, INC.
By: /s/
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Name:
Title:
NORTH AMERICAN AIRLINES, INC.
By: /s/
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Name:
Title:
WORLD AIRWAYS PARTS COMPANY, LLC
By: /s/
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Name:
Title:
Signature Page to Amendment No. 1 and Waiver to Loan Agreement
GOVCO INCORPORATED,
as Primary Tranche A Lender
By: Citicorp North America, Inc., as
its attorney-in-fact and
administrative agent
By: /s/
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Name:
Title:
Signature Page to Amendment No. 1 and Waiver to Loan Agreement
CITIBANK, N.A.,
as Alternate Tranche A Lender
By: /s/
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Name:
Title:
Signature Page to Amendment No. 1 and Waiver to Loan Agreement
CITICORP USA, INC.,
as Tranche B Lender
By: /s/
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Name:
Title:
Signature Page to Amendment No. 1 and Waiver to Loan Agreement
CITIBANK, N.A.,
as Agent
By: /s/
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Name:
Title:
Signature Page to Amendment No. 1 and Waiver to Loan Agreement
CITIBANK, N.A.,
as Collateral Agent
By: /s/
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Name:
Title:
Signature Page to Amendment No. 1 and Waiver to Loan Agreement
CITICORP NORTH AMERICA, INC.,
as Govco Administrative Agent
By: /s/
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Name:
Title:
Signature Page to Amendment No. 1 and Waiver to Loan Agreement
INTERNATIONAL LEASE FINANCE CORPORATION,
as Supplemental Guarantor
By: /s/
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Name:
Title:
Signature Page to Amendment No. 1 and Waiver to Loan Agreement
AIR TRANSPORTATION STABILIZATION BOARD
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Executive Director
Signature Page to Amendment No. 1 and Waiver to Loan Agreement
