WAIVER AND AMENDMENT NUMBER THREE
TO LOAN AGREEMENT
This WAIVER AND AMENDMENT NUMBER THREE TO LOAN AGREEMENT (this “Agreement”), dated as of November 30, 2007, among ATLANTIC AVIATION FBO INC., a Delaware corporation (the “Borrower”); the several banks and other financial institutions signatories hereto (the “Lender Parties”); and DEPFA BANK plc, as Administrative Agent (in such capacity, the “Administrative Agent”).
RECITALS
A. The parties hereto are parties to the Loan Agreement dated as of September 27, 2007 by and among the Borrower, the several banks and other financial institutions from time to time parties thereto as lenders (the “Lenders”), issuing bank or hedging banks and the Administrative Agent (as amended, the “Loan Agreement”), pursuant to which the Lenders have agreed to provide certain loans to the Borrower for the purposes and upon the terms and conditions set forth therein.
B. The Borrower contemplates the acquisition, pursuant to that certain Membership Purchase Agreement dated as of November __, 2007, by and among the Borrower and the sellers named therein (the “Rifle Air Purchase Agreement”), of 100% of the Equity Securities of Rifle Air, LLC, a Colorado limited liability company (“Rifle Air”), which in turn owns 100% of the Equity Securities of Rifle Air Jet Center, LLC, a Colorado limited liability company, and Rifle Air Jet Center Maintenance, LLC, a Colorado limited liability company, all of which entities own and operate a Fixed Based Operations business at Garfield County Regional Airport in Rifle, Colorado (the “Rifle Air Acquisition”).
C. The Borrower has requested that the Required Lenders (a) approve an amendment to Section 7.1 of the Loan Agreement to permit certain indebtedness related to the Rifle Air Acquisition, (b) waive the provisions of Section 7.4 to permit the Rifle Air Acquisition, and (c) approve certain supplements to the Schedules to the Loan Agreement.
D. The Lender Parties are willing to provide the requested approvals and waiver, all subject to and upon the terms as set forth herein.
NOW THEREFORE, the parties hereto hereby agree as follows:
Section 1. Definitions and Rules of Interpretation. All capitalized terms used but not defined in this Agreement shall have the respective meanings specified in the Loan Agreement. The rules of interpretation set forth in Appendix A to the Loan Agreement shall apply to this Agreement, mutatis mutandis, as if set forth herein.
Section 2. Amendment to Loan Agreement. The Loan Agreement is hereby amended as follows:
(a) Section 7.1 (Indebtedness and Guarantee Obligations).
(i) The following new clause shall be inserted as new clause (g) immediately following the currently existing clause (f) of Section 7.1 of the Loan Agreement:
“(g) Indebtedness of up to $700,000.00 incurred in connection with the acquisition by the Borrower of all of the Equity Securities of Rifle Air, LLC pursuant to that certain Membership Purchase Agreement dated November 30, 2007, by and among the Borrower and the sellers named therein, the principal amount of which Indebtedness shall be included in the calculation of the cap set forth in the proviso to the preceding clause (f).”
(ii) Currently existing clause (g) of Section 7.1 of the Loan Agreement shall be renumbered as clause (h).
(b) Appendix A (Definitions and Rules of Interpretation).
(i) The definition of “Loan Documents” is hereby amended by inserting the words “the Investor Contribution Agreement, ” immediately after the words “each Letter of Credit, “ in the third line thereof.
(ii) The following definition is hereby inserted immediately following the definition of “Investor”:
“Investor Contribution Agreement” means the letter agreement by the Investor and acknowledged by the Borrower and the Administrative Agent dated as of November 30, 2007.”
Section 3. Waiver Relating to Rifle Air Acquisition. The Lender Parties hereby waive any non-compliance with Section 7.4 of the Loan Agreement resulting from the Borrower’s consummation of the Rifle Air Purchase Agreement.
Section 4. Approval of Amendments to Schedules. The Lender Parties hereby approve the supplements to the Schedules to the Loan Agreement set forth in Attachment 1 hereto.
Section 5. No Further Waiver or Amendment. Except to the extent that provisions of the Loan Agreement or its Schedules are amended, waived or supplemented as expressly set forth in Sections 2,3 and 4 hereof, the execution and delivery hereof shall not (a) operate as a modification or waiver of any right, power or remedy of the Financing Parties or the Collateral Agent under any of the Loan Documents, (b) cause a novation with respect to any of the Loan Documents, or (c) extinguish or terminate any obligations of the Borrower under the Loan Documents.
Section 6. Effectiveness. This Agreement shall become effective on the first date on which the Administrative Agent shall have received all of the following:
(a) Duly executed counterparts of this Agreement (which may be by telecopy) from each of the Borrower and the Required Lenders and an acknowledgement thereof duly executed by the Administrative Agent;
(b) The Investor Contribution Agreement in the form of Exhibit A hereto, duly executed by the Investor and acknowledged by each of the Borrower and the Administrative Agent; and
(c) Evidence reasonably satisfactory to the Administrative Agent that (i) the purchase price (as such term is defined in the Rifle Air Purchase Agreement) has been paid in accordance with the Rifle Air Purchase Agreement, other than any adjustment thereto in accordance with the Rifle Air Purchase Agreement that is not yet due and payable; (ii) all existing Indebtedness of Rifle Air and its Subsidiaries has been paid off, except for any Indebtedness which, after giving effect to this Agreement, will constitute Permitted Indebtedness; and (iii) The Flight Department, LLC, shall no longer be an Affiliate of Rifle Air or any of its Subsidiaries.
Section 7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Section 8. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 9. Headings. The headings in this Agreement have been included herein for convenience of reference only, are not part of this Agreement, and shall not be taken into consideration in interpreting this Agreement.
Section 10. Entire Agreement. This Agreement comprises the complete and integrated agreement of the parties hereto on the subject matter hereof and supersedes all prior agreements, written or oral, on such subject matter.
Section 11. Counterparts. This Agreement may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be maintained by the Borrower and the Administrative Agent.
[Signature pages follow.]
N WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.
| ATLANTIC AVIATION FBO INC. |
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| By: | /s/ Louis T. Pepper |
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| Name: Louis T. Pepper |
| Title: Chief Executive Officer |
AMENDMENT NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
Acknowledged by: |
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| DEPFA BANK plc, as Administrative Agent |
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| By: | /s/ Maria Kang |
| | |
| Name: Maria Kang |
| Title: Director |
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| By: | /s/ Ruth McMorrow |
| | |
| Name: Ruth McMorrow |
| Title: Managing Director |
AMENDMENT NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
| DEPFA BANK plc, as Term Loan Lender |
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| By: | /s/ Maria Kang |
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| Name: Maria Kang |
| Title: Director |
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| By: | /s/ Ruth McMorrow |
| | |
| Name: Ruth McMorrow |
| Title: Managing Director |
AMENDMENT NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND, as Term Loan Lender |
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| By: | /s/ Peter St. John [Illegible] |
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| Name: Peter St. John [Illegible] |
| Title: Director |
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| By: | /s/ Anthony Rourke |
| | |
| Name: Anthony Rourke |
| Title: Manager |
AMENDMENT NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
DEKA BANK DEUTSCHE GIROZENTRALE, as Term Loan Lender |
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| By: | /s/ Jurgen Schoneberg |
| | |
| Name: Jurgen Schoneberg |
| Title: Vice President |
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| By: | /s/ Peter Bahn |
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| Name: Peter Bahn |
| Title: Executive Director |
AMENDMENT NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
WESTLB AG, NEW YORK BRANCH as Term Loan Lender |
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| By: | /s/ Caryn Suffredini |
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| Name: Caryn Suffredini |
| Title: Director |
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| By: | /s/ Amir Oren |
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| Name: Amir Oren |
| Title: Associate Director |
AMENDMENT NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
| DEPFA BANK plc, as Capex Loan Lender |
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| By: | /s/ Maria Kang |
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| Name: Maria Kang |
| Title: Director |
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| By: | /s/ Ruth McMorrow |
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| Name: Ruth McMorrow |
| Title: Managing Director |
AMENDMENT NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND, as Capex Loan Lender |
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| By: | /s/ Peter St. John [Illegible] |
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| Name: Peter St. John [Illegible] |
| Title: Director |
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| By: | /s/ Anthony Roucke |
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| Name: Anthony Roucke |
| Title: Manager |
AMENDMENT NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
DEKA BANK DEUTSCHE GIROZENTRALE, as Capex Loan Lender |
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| By: | /s/ Jurgen Schoneberg |
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| Name: Jurgen Schoneberg |
| Title: Vice President |
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| By: | /s/ Peter Bahn |
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| By: | /s/ Jurgen Schoneberg |
AMENDMENT NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
DEPFA BANK plc, as Revolving Loan Lender and Issuing Bank |
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| By: | /s/ Maria Kang |
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| Name: Maria Kang |
| Title: Director |
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| By: | /s/ Ruth McMorrow |
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| Name: Ruth McMorrow |
| Title: Managing Director |
AMENDMENT NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
ATTACHMENT 1
SUPPLEMENTAL DISCLOSURE SCHEDULES
(See attached)
AMENDMENT NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
EXHIBIT A
FORM OF INVESTOR CONTRIBUTION AGREEMENT
(See attached)
MACQUARIE FBO HOLDINGS LLC
November [__], 2007
DEPFA BANK plc,
as Administrative Agent
1 Commons Street
Dublin 1
Ireland
Attention: Brian Price
Atlantic Aviation FBO Inc.
6504 International Parkway, Suite 2400
Plano, Texas 75093
Attention: Calvin Miller
Dear Sir or Madam,
RE: Investor Contribution Agreement
We refer to (i) the Loan Agreement dated as of September 27, 2007 by and among Atlantic Aviation FBO Inc. (the “Borrower”), the several banks and other financial institutions from time to time parties thereto as lenders (the “Lenders”), issuing bank or hedging banks, and DEPFA BANK plc as administrative agent (in that capacity, the “Administrative Agent”) (as amended, the “Loan Agreement”), (ii) the Membership Purchase Agreement dated as of November [__], 2007 by and among the sellers named therein (the “Rifle Sellers”) and the Borrower, as buyer (the “MPA”), and (iii) Amendment Number Three to Loan Agreement, dated as of the date hereof, by and among the Borrower, the Lenders party thereto and the Administrative Agent (“Amendment No. 3”). All capitalized terms used but not otherwise defined herein shall have the meanings set forth in Appendix A to the Loan Agreement, and the rules of interpretation set forth in Appendix A to the Loan Agreement shall apply to this letter agreement. We hereby acknowledge that it is a condition precedent to the effectiveness of Amendment No. 3 that the Investor, the Borrower and the Administrative Agent shall have executed and delivered this letter agreement.
1. Equity Contribution. The Investor hereby covenants to the Borrower and the Administrative Agent as follows:
(a) Promptly, but in any event within five (5) Business Days, after receiving notice from the Borrower or the Administrative Agent that the Borrower is required to make any payments to the Rifle Sellers pursuant to the MPA, including pursuant to Sections 2.3 (Working Capital Adjustments) or 12.2 (Indemnification by Buyer) thereof, or pursuant to the promissory note issued pursuant to Section 2.2(a)(ii) thereof, the Investor shall make additional equity contributions to the Borrower in an amount equal to any such required payments.;
(b) The Investor shall pay all reasonable out-of-pocket expenses incurred by the Administrative Agent or the Borrower, including the fees, charges and disbursements of any counsel for the Administrative Agent or the Borrower, in connection with the enforcement, attempted enforcement or protection of their respective rights in connection with this letter agreement or any other Loan Document.
2. Enforcement. The Investor acknowledges and agrees that this letter agreement is entered into for the benefit of the Borrower and the Administrative Agent, acting on behalf of the Financing Parties, and that the Administrative Agent, on behalf of the Financing Parties, shall have the right (but not the obligation) to proceed directly against the Investor to enforce any obligations of the Investor hereunder.
3. Limitation of Liability. The obligations of the Investor under this letter agreement are limited as set forth herein and shall in no way create any recourse, liability or obligation (contingent or otherwise) to or on the part of Investor or any of its Affiliates beyond the liabilities expressly set out in this letter agreement. No further liability and no promise of any additional commitments are to be inferred or implied.
4. Representations and Warranties. The Investor warrants and represents to the Borrower and the Administrative Agent as follows:
(a) The Investor is a duly organized, validly existing limited liability company organized and in good standing under the laws of the State of Delaware, and has all requisite power and authority to conduct its business and to own its property as now conducted or owned;
(b) The execution, delivery and performance by the Investor of this letter agreement, and the performance of its obligations hereunder, are within the Investor’s limited liability company powers, have been duly authorized by all necessary action, and do not (i) contravene the Investor’s organizational documents, (ii) violate any Governmental Rule, or (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting the Investor or any of its property or assets; and
(c) This letter agreement has been duly executed and delivered by a duly authorized representative of the Investor and constitutes a legal, valid and binding obligation of the Investor, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, and similar laws affecting the enforcement of creditors’ rights generally and general principles of equity.
5. Notices. All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, with a copy to each party hereto, as follows:
| (a) | if to the Borrower: |
| | |
| | Atlantic Aviation FBO Inc. |
| | 6504 International Parkway, Suite 2400 |
| | Plano, TX 75093 |
| | Attention: Calvin Miller |
| | Telephone: (972) 447-4205 |
| | Facsimile: (972) 447-4211 |
| | with a copy to: |
| | |
| | Macquarie Infrastructure Company Inc. |
| | 125 West 55th Street |
| | New York, New York 10019 |
| | Attention: Frank Joyce |
| | Telephone: (212) 231-1814 |
| | Facsimile: (212) 231-1828 |
| | |
| | and |
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| | Pillsbury Winthrop Shaw Pittman LLP |
| | 1650 Tysons Boulevard |
| | McLean, Virginia 22102 |
| | Attention: Craig E. Chason, Esq. |
| | Telephone: (703) 770-7947 |
| | Facsimile: (703) 770-7901 |
| | |
| (b) | if to the Administrative Agent: |
| | |
| | DEPFA BANK plc |
| | 1 Commons Street |
| | Dublin 1 |
| | Ireland |
| | Attention: Brian Price |
| | Telephone: +353 1 792 2374 |
| | Facsimile: +353 1 792 2164 |
| | |
| (c) | If to the Investor: |
| | |
| | Macquarie FBO Holdings LLC |
| | c/o Macquarie Infrastructure Company Inc. |
| | 125 West 55th Street |
| | New York, New York 10019 |
| | Attention: Frank Joyce |
| | Telephone: (212) 231-1814 |
| | Facsimile: (212) 231-1828 |
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.
6. Assignment / Termination. This letter agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns, provided that neither the Investor nor the Borrower may assign or otherwise transfer any of their respective rights or obligations hereunder without the prior written consent of the Administrative Agent (and any attempted assignment or transfer by the Investor or the Borrower without such consent shall be null and void). This letter agreement shall remain in full force and effect until all Obligations to be paid or performed under the Loan Documents have been indefeasibly paid and performed in full and the Commitments under the Loan Documents have been terminated.
7. General Provisions. This letter agreement may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this letter agreement by telecopy shall be effective as delivery of a manually executed counterpart of this letter agreement. This letter agreement shall be governed by, and construed in accordance with, the law of the State of New York.
[Signature pages follow.]
| Very truly yours, |
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MACQUARIE FBO HOLDINGS LLC |
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| By: | MACQUARIE INFRASTRUCTURE COMPANY INC., |
| | its managing member |
| By: | |
| | Name: | |
| | Title: | |
INVESTOR CONTRIBUTION AGREEMENT
(ATLANTIC - RIFLE FBO ACQUISITION)
Acknowledged by:
DEPFA BANK plc
as Administrative Agent
INVESTOR CONTRIBUTION AGREEMENT
(ATLANTIC - RIFLE FBO ACQUISITION)
Acknowledged by:
ATLANTIC AVIATION FBO INC.
INVESTOR CONTRIBUTION AGREEMENT
(ATLANTIC - RIFLE FBO ACQUISITION)
