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EXHIBIT 10.2
Execution Copy
SUPPORT AGREEMENT, dated as of August 13,
2001, among XXXXXX XXXXXX PARTNERS III, L.P. (the
"Sponsor"), WFS HOLDINGS, INC. ("Holdings"),
WORLDWIDE FLIGHT SERVICES, INC., (the "Borrower") and
The Chase Manhattan Bank, as Administrative Agent
(the "Agent") for the Lenders under the Credit
Agreement dated as of August 12, 1999, as amended
(the "Credit Agreement"), among Holdings, the
Borrower, the lenders party thereto (the "Lenders"),
the Agent, and DLJ CAPITAL FUNDING, INC., as
Syndication Agent.
The Sponsor owns substantially all of the Equity Interests in Holdings,
and Holdings owns all of the Equity Interests in the Borrower. Holdings and the
Borrower have requested that the Lenders grant a limited waiver of compliance
with certain provisions of the Credit Agreement in the manner provided in Waiver
to the Credit Agreement (the "Waiver") dated as of the date hereof. In order to
induce the Lenders to approve the Waiver the Sponsor has agreed to give certain
undertakings directly to the Agent acting on behalf of the Lenders, all as
provided in this Agreement. The execution of this Agreement is a condition
precedent to the effectiveness of the Waiver. Accordingly, the parties hereto
agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. All capitalized terms used herein and not
defined herein shall have the respective meanings ascribed to such terms in the
Credit Agreement. In addition, the following terms shall have the following
meanings:
"Available Liquidity" means, on any date, the sum of (a) the
Unrestricted Cash Balances of the Borrower and the Subsidiary Loan Parties on
such date and (b) undrawn Revolving Commitments available to the Borrower and
the Subsidiary Loan Parties under the Credit Agreement on such date as to which
all conditions to borrowing are satisfied as of such date.
"Maturity Date" means December 31, 2001.
"Sponsor Default" means (a) the failure by the Sponsor to observe or
perform any covenant, condition or agreement contained herein or in the
Subordination Agreement and (b) any representation or warranty of the Sponsor
contained herein, in the Support Agreement or in any certificate of the Sponsor
delivered in connection therewith is incorrect in any material respect as of the
date on which it was made.
"Subordination Agreement" means the Subordination Agreement in the form
of Exhibit B, among the Sponsor, Holdings, the Borrower and the Agent for the
benefit of the Lenders.
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"Support Effective Date" means August 13, 2001.
"Support Event" means (a) each occasion on which (i) the Borrower
requests any Borrowing under the Credit Agreement and (ii) the Available
Liquidity of the Borrower is, or would be after giving effect to such requested
Borrowing, less than $5,000,000 at the time the Borrower makes such request
(each, a "Class One Support Event") and (b) each occasion on which (i) the
Available Liquidity of the Borrower is less than $2,000,000 and (ii) the
Borrower delivers a written notice to the Sponsor requesting the Sponsor to make
a Sponsor Contribution (each, a "Class Two Support Event").
"Unrestricted Cash Balances" means, as of any date, all cash and cash
equivalents held by the Borrower and the Subsidiary Loan Parties on such date
that are not (a) contractually committed to be spent, reserved for or applied to
a specific purpose, (b) required to be maintained or kept available by the
applicable Loan Party or (c) otherwise subject to contractual or other
restrictions limiting the applicable Loan Party's ability to spend, transfer or
otherwise apply such cash or cash equivalents.
SECTION 1.02. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any Loan
Document), (b) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts, contract
rights, licenses and intellectual property.
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ARTICLE II
Sponsor Contributions
SECTION 2.01. Required Sponsor Contributions. The Sponsor agrees that
it will, subject to the terms and conditions hereof, make cash contributions to
the Borrower in the amounts set forth in the following sentence (each, a
"Sponsor Contribution") upon the occurrence of any Support Event; provided that
under no circumstances will the Sponsor be obligated hereunder to provide
aggregate Sponsor Contributions in an amount greater than $10.0 million at any
time outstanding. Subject to the foregoing, upon the occurrence of:
(a) any Class One Support Event, the Sponsor shall make a
Sponsor Contribution in an amount equal to the aggregate principal
amount of the Borrowing (or, in the case of a Borrowing that reduces
the Available Liquidity of the Borrower to less than $5,000,000, the
portion of such Borrowing that results in the Borrower's Available
Liquidity being less than $5,000,000) giving rise to such Class One
Support Event; and
(b) any Class Two Support Event, the Sponsor shall make a
Sponsor Contribution in the amount requested by the Borrower; provided
that the amount so requested shall not exceed the amount sufficient to
make the Available Liquidity of the Borrower equal to $2,000,000.
The Sponsor shall make all Sponsor Contributions promptly upon the
occurrence of the applicable Support Event, but in no event later than (a) in
the case of a Class One Support Event, the time at which the Borrowing giving
rise to such Class One Support Event is made and (b) in the case of a Class Two
Support Event, 1:00 p.m., Dallas time, on the second Business Day of the
Borrower immediately following such Class Two Support Event.
SECTION 2.02. Borrowings; Contribution Requests. The Borrower
acknowledges and agrees that (i) at any time that the Available Liquidity of the
Borrower is, or would be after giving effect to the applicable Borrowing, less
than $5,000,000, it will not receive, and the Lenders will not be required to
fund, any Borrowing unless the Sponsor has, prior to or concurrently with such
Borrowing, made the Sponsor Contribution required in respect of such Borrowing
pursuant to Section 2.01(a) hereof and (ii) at any time that the Available
Liquidity of the Borrower is less than $2,000,000, it will not make, and the
Lenders will not be required to fund, any Borrowing.
SECTION 2.03. Sponsor Notes. Each Sponsor Contribution will be made as
a subordinated loan evidenced by one or more unsecured promissory notes of the
Borrower in the form of Exhibit A hereto (the "Sponsor Notes"). The Sponsor
Notes (a) will not contain remedies or like provisions that have effect before
the Obligations have been paid in full in cash, (b) except as expressly provided
in the Subordination Agreement, will not provide for any cash payments to be
made thereon (whether in respect of principal, interest or otherwise) until the
Obligations have been paid in full in cash (it being
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understood that nothing contained herein shall prevent the Borrower from paying
interest on Sponsor Notes in the form of additional Sponsor Notes), (c) may not
mature prior to the Maturity Date and (d) may not be held by any Person other
than the Sponsor. The Sponsor Notes will be subject to the terms of the
Subordination Agreement.
SECTION 2.04. Notification of Contributions. Promptly after any payment
is made pursuant to Section 2.01 the Borrower shall notify the Agent of the
same, specifying the amount paid, the principal amount of Sponsor Notes
subscribed for, the date of payment, and such other details as the Agent may
reasonably require.
SECTION 2.05. Statements of Available Liquidity. On the last Business
Day of each week, a Financial Officer of the Borrower will deliver a certificate
to the Agent and the Sponsor setting forth the Borrower's Available Liquidity as
of such date and demonstrating the calculation thereof in reasonable detail.
SECTION 2.06. Termination. Except as set forth in this section, the
obligations of the Sponsor hereunder shall terminate on the earlier to occur of
(a) the date on which the Obligations have been paid in full in cash and (b) the
Maturity Date. Notwithstanding anything to the contrary herein, the Sponsor's
obligations under Section 5.02 shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated herein, the
repayment of the Obligations or the termination or expiration of this Agreement
or any provision hereof.
ARTICLE III
Representations and Warranties
The Sponsor represents and warrants to the Agent and the Lenders that:
SECTION 3.01. Organization; Powers. It is duly organized, validly
existing and, where applicable, in good standing under the laws of the
jurisdiction of its organization, and has all requisite power and authority to
carry on its business as now conducted.
SECTION 3.02. Authorization; Enforceability. It has the power and
authority and legal right to execute and deliver, and to perform its obligations
under this Agreement, and this Agreement has been duly authorized by all
necessary action. This Agreement has been duly executed and delivered by such
party and constitutes a legal, valid and binding obligation of the Sponsor,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
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SECTION 3.03. Governmental Approvals; No Conflicts. The execution,
delivery and performance of this Agreement (a) does not require any Government
Approvals, except such as have been obtained or made and are in full force and
effect, (b) will not violate any applicable law or regulation or its
organizational documents or any order of any Governmental Authority and (c) will
not violate or result in a default under any indenture, agreement or other
instrument binding upon it or its assets, or give rise to a right thereunder to
require any payment to be made by it.
SECTION 3.04. Investment and Holding Company Status. It is not (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.05. Liquidity; No Material Adverse Change. (a) It has
available to it at least $10,000,000 in cash, cash equivalents and available
commitments under its liquidity facility (the "Liquidity Facility") for which
all conditions precedent to drawing capable of being satisfied prior to a
drawing have been satisfied; (b) it has delivered to Cravath, Swaine & Xxxxx,
counsel to the Agent, a true and complete copy of the agreement evidencing the
Liquidity Facility; and (c) there exists no event, circumstance or condition
that could reasonably be expected to result in the failure of any condition to
drawing under the Liquidity Facility to be satisfied or otherwise to prevent the
Sponsor from making drawings under the Liquidity Facility.
ARTICLE IV
Undertakings and Acknowledgments
SECTION 4.01. Nature of Liability; Independent Obligation. The Sponsor
agrees that this Agreement may be enforced by the Agent without the necessity at
any time of resorting to or exhausting any proceedings or actions under the
Credit Agreement or any other Loan Document or otherwise, or resorting to any
other guarantees or attempting first to collect any Obligations (or to enforce
the performance of any such Obligations) of the Borrower or any other Loan
Party. The Sponsor hereby waives the right to require the Agent to join the
Borrower or any other Loan Party in any action brought hereunder or to commence
any action against or obtain any judgment against the Borrower or any other Loan
Party or to pursue any other remedy or enforce any other right. To the extent
permitted by applicable law, the Sponsor further agrees that nothing contained
herein or otherwise shall prevent the Agent or any Lender from pursuing
concurrently or successively all rights and remedies available to the Agent or
any Lender at law and/or in equity, hereunder or under the other Loan Documents,
and the exercise of any of its rights or the completion of any of its remedies
shall not constitute a discharge of any of the Sponsor's obligations hereunder,
it being the purpose and intent of the Sponsor that its obligations hereunder
shall be absolute, independent and unconditional under any and all.
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circumstances whatsoever without regard to the validity, regularity or
enforceability of the Credit Agreement or any other Loan Document. Neither the
Sponsor's obligations under this Agreement nor any remedy for the enforcement
thereof shall be impaired, modified, changed or released in any manner
whatsoever by any impairment, modification, change, release or limitation of the
liability of any Loan Party under the Credit Agreement or any other Loan
Document or by reason of any Loan Party's bankruptcy or by reason of any
creditor or bankruptcy proceeding instituted by or against any Loan Party.
SECTION 4.02. Loan Document. The Sponsor acknowledges receipt of a copy
of the Credit Agreement, and agrees that this Agreement shall constitute a Loan
Document for all purposes. The Sponsor acknowledges that the provisions of each
Loan Document other than this Agreement may be at any time amended, waived and
otherwise modified without notice to or consent from the Sponsor.
ARTICLE V
Payments
SECTION 5.01. Set-Off and Counterclaim. All and any payments made by or
on account of any obligation of the Sponsor hereunder shall be made without
set-off or counterclaim in dollars in immediately available funds to such
account as the payee shall notify to the payer.
SECTION 5.02. Reimbursement for Expenses of Enforcement. The Sponsor
agrees to pay or reimburse each Lender and the Agent for all its reasonable
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, including, without limitation, the
reasonable fees and disbursements of counsel to the Agent and, at any time after
and during the continuance of a Sponsor Default, of one counsel for all the
Lenders. The agreements in this Section 5.02 shall survive the termination of
this Agreement.
SECTION 5.03. Determinations. Any determination by the Agent of an
amount under this Agreement shall be, in the absence of manifest error, prima
facie evidence of the matters to which it relates.
ARTICLE VI
Miscellaneous
SECTION 6.01. Benefit of Agreement. The parties hereto acknowledge that
the obligations of the Sponsor and the Borrower set forth in this Agreement are
for the benefit of the Lenders, and the Agent on behalf of the Lenders may
enforce the obligation of the Sponsor to make Sponsor Contributions to the
Borrower hereunder. No person other than
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the parties hereto and the Lenders shall have any express or implied rights
under this Agreement. Without limiting the generality of the foregoing, this
Agreement gives no rights whatsoever to the holders of Senior Notes.
SECTION 6.02. Notices. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
and mailed, telegraphed, telexed, telecopied, cabled, sent by a nationally
recognized express courier or delivered by hand, if to the Sponsor, at c/o
Xxxxxx Xxxxxx, Inc., 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxx Xxxxxxxx, Xxxxxx Xxxxx and Xxxxxxx Xxxxxxxxx; if to the Agent,
at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx Xxxxxx; and, if to
the Borrower, at 0000 Xxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, XX 00000, with a
copy to Xxxxxx Xxxxxx, Inc.; or, at such other address as shall be designated by
any party in a written notice to the other parties hereto as provided in this
Section 6.02. All such notices and communications shall be effective at the
earliest to occur of receipt, three Business Days after deposit in the United
States mail, one Business Day after delivery to a nationally recognized express
courier, delivery to a telegraph or cable company and telephone confirmation of
receipt of telex or telecopier communication.
SECTION 6.03. No Guarantee of Indebtedness. Neither this Agreement, nor
anything herein contained, nor any obligation performed or to be performed
pursuant hereto by the Sponsor shall be construed or deemed to constitute, a
direct or indirect guarantee by the Sponsor to any Person or entity of the
payment of the interest, principal or premium of any indebtedness, liability or
obligation whatsoever of Holdings or any of its subsidiaries, including without
limitation, the Loans and the Senior Notes.
SECTION 6.04. No Waiver; Remedies Cumulative. No failure or delay on
the part of any of the Lenders or the Agent in exercising any right, power or
privilege hereunder and no course of dealing between the Sponsor, Holdings or
the Loan Parties, on the one hand, and any of the Lenders or the Agent, on the
other, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power, or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder. No notice to or demand on the Sponsor, Holdings or any of the Loan
Parties in any case shall entitle any of them to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
any of the Lenders or the Agent to any other or further action in any
circumstances without notice or demand.
SECTION 6.05. APPLICABLE LAW; WAIVER OF JURY TRIAL; CONSENT TO
JURISDICTION AND SERVICE OF PROCESS.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
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STATE OF NEW YORK (INCLUDING ALL MATTERS OF STRUCTURE, VALIDITY AND
PERFORMANCE).
(b) TO THE EXTENT PERMITTED BY LAW, ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST THE SPONSOR, THE BORROWER OR THE AGENT MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT EACH OF THE SPONSOR, THE BORROWER AND
THE AGENT ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY
AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT. TO THE EXTENT PERMITTED BY LAW, THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE TRIAL BY JURY, AND EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN
SUCH RESPECTIVE JURISDICTIONS. TO THE EXTENT PERMITTED BY LAW, EACH OF THE
PARTIES HERETO HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE
SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW.
SECTION 6.06. Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all of which shall together constitute one and the same
instrument.
SECTION 6.07. Headings Descriptive. The headings of the several
sections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
SECTION 6.08. Amendment or Waiver. Neither this Agreement nor any of
the terms hereof may be amended, modified, supplemented, waived, discharged or
terminated unless such amendment, modification, supplement, waiver, discharge or
termination is in writing signed by the Sponsor, the Borrower and the Agent. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given.
SECTION 6.09. Waivers; Successors and Assigns. The obligations and
liabilities of the Sponsor and the Borrower hereunder shall not be conditioned
or contingent upon
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the pursuit by the Lenders or any other Person at any time of any right or
remedy against any Loan Party. This Agreement shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon
each of the Sponsor, the Borrower and the Agent and the successors and assigns
thereof, and shall inure to the benefit of the Sponsor, the Borrower, the Agent,
the Lenders, and their respective successors and assigns.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
XXXXXX XXXXXX PARTNERS III, L.P.,
By: Xxxxxx Xxxxxx Associates III, L.P.,
its General Partner,
By: Xxxxxx Xxxxxx Partners III G.P., Inc.,
its General Partner,
By:
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Name:
Title:
WFS HOLDINGS, INC.,
By:
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Name:
Title:
WORLDWIDE FLIGHTS SERVICES, INC.,
By: /s/ [ILLEGIBLE]
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Name: [ILLEGIBLE]
Title: VP
THE CHASE MANHATTAN BANK,
By:
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Name:
Title:
