Exhibit 10.26
FORM OF
AMENDMENT NO. 1
to
RECAPITALIZATION AGREEMENT
by and among
SPIRIT AIRLINES, INC.,
POF SPIRIT FOREIGN HOLDINGS,
OCM PRINCIPAL OPPORTUNITIES FUND II, L.P.
OCM PRINCIPAL OPPORTUNITIES FUND III, L.P.
OCM SPIRIT HOLDINGS, LLC,
OCM SPIRIT HOLDINGS II, LLC,
OCM SPIRIT HOLDINGS III, LLC,
OCM SPIRIT HOLDINGS III-A, LLC,
INDIGO FLORIDA L.P.,
INDIGO MIRAMAR LLC,
INDIGO PARTNERS LLC,
JACOB SCHORR,
JULIANNE B. SCHORR,
THE DAVID B. SCHORR TRUST U/T/A DATED DECEMBER 31, 1977,
THE DINA L. SCHORR TRUST U/T/A DATED JULY 1, 1980,
THE ELLIOTT A. SCHORR TRUST U/T/A DATED DECEMBER 31, 1977,
THE RAPHAEL A. SCHORR TRUST U/T/A DATED DECEMBER 31, 1977,
TAURUS INVESTMENT PARTNERS LLC,
EDWARD HOMFELD,
HOMFELD II, LLC,
MARK KAHAN 2005 IRREVOCABLE TRUST F/B/O ELIYAHU MOSHE KAHAN
AND
MARK KAHAN
Dated as of May 25, 2011
AMENDMENT NO. 1
TO
RECAPITALIZATION AGREEMENT
THIS AMENDMENT NO. 1 to RECAPITALIZATION AGREEMENT (this “Amendment” or “Agreement”) is dated as of May 25, 2011, and is being entered into by and among Spirit Airlines, Inc., a Delaware corporation (the “Company”); the Indigo Equityholders and the Oaktree Equityholders for the purpose of implementing an amendment to that certain Recapitalization Agreement (the “Recapitalization Agreement”), dated as of September 17, 2010, by and among the Company, POF Spirit Foreign Holdings, LLC, a Delaware limited liability company (“POF Spirit”); OCM Spirit Holdings, LLC, a Delaware limited liability company (“Holdings”); OCM Spirit Holdings II, LLC, a Delaware limited liability company (“Holdings II”); OCM Principal Opportunities Fund II, L.P., a Delaware limited partnership (“POF II”); OCM Principal Opportunities Fund III, L.P., a Delaware limited partnership (“POF III”); OCM Spirit Holdings III, LLC, a Delaware limited liability company (“Holdings III”); OCM Spirit Holdings III-A, LLC, a Delaware limited liability company (“Holdings III-A”); Indigo Florida L.P., a Cayman Islands exempt limited partnership, Indigo Miramar LLC, a Delaware limited liability company and Indigo Partners LLC, a Delaware limited liability company; Jacob Schorr, Julianne B. Schorr, The David B. Schorr Trust U/T/A dated December 31, 1977, The Dina L. Schorr Trust U/T/A dated July 1, 1980, The Elliott A. Schorr Trust U/T/A dated December 31, 1977, and The Raphael A. Schorr Trust U/T/A dated December 31, 1977 (collectively, the “Schorr Family”), Taurus Investment Partners LLC, an Alaskan limited liability company (“Taurus” and together with the Schorr Family the “Schorr Parties”), Edward Homfeld and Homfeld II, LLC (collectively, the “Homfeld Parties”), Mark Kahan 2005 Irrevocable Trust f/b/o Eliyahu Moshe Kahan and Mark Kahan.
All capitalized terms used but not defined herein shall have the meaning provided for in the Recapitalization Agreement.
RECITALS
WHEREAS, the Recapitalization, by the terms of Section 5.1 thereof, may be amended provided such amendment is approved in writing by the Company and the Requisite Equityholders, whereupon any such amendment approved by the Company and the Requisite Equityholders shall be binding on all Equityholders.
WHEREAS, the Requisite Equityholders and the Company have determined to amend the Recapitalization Agreement upon the terms and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, covenants, conditions and agreements contained herein, and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound by the terms hereof, hereby as follows
SECTION 1
AMENDMENTS
Section 1.1 Amendment to Section 2.2. Notwithstanding the requirements of Section 2.2 of the Recapitalization Agreement, (a) although the Professional Services Agreement shall be terminated at the closing of the Initial Public Offering, the Termination Fee shall be payable on July 1, 2011 so long as the Initial Public Offering shall have been consummated on or prior to such date, and (b) such Termination Fee shall not be deducted to arrive at the Net Proceeds.
Section 1.2 Amendment to Section 2.4. Section 2.4 of the Recapitalization Agreement is amended to read as follows: “Following the payment of underwriters commissions, transaction expenses and the Individual Equityholders Fee, at the closing of an Initial Public Offering, the Company shall retain Net Proceeds equal to $115,000,000, or another amount as determined by the Board of Directors of the Company not to exceed $115,000,000 (the“Company Proceeds”), prior to the payment of the outstanding principal amount and accrued and unpaid interest on the Notes, redemption of any shares of Preferred Stock or, if applicable, payment of the Guarantee Fees.”
Section 1.3 Amendment to Section 2.5. Section 2.5 of the Recapitalization Agreement is amended as follows:
(a) The reference to “Twenty-five percent (25%) of Remaining Proceeds” in Section 2.5(a) shall be amended to be: “Thirty-five percent (35%) of Remaining Proceeds”.
(b) The reference to “Seventy-five percent (75%) of Remaining Proceeds” in Section 2.5(b) shall be amended to be: “Sixty- five percent (65%) of Remaining Proceeds”;
Section 1.4 Amendment to Section 2.8. Section 2.8 of the Recapitalization Agreement is amended as follows: each reference to “$20,000,000” in Sections 2.8(a) and (b) shall be amended to “$25,600,000.
Section 1.5 Goldman Obligations. The Goldman Obligations are deemed satisfied for purposes of Section 5.14 of the Recapitalization Agreement.
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SECTION 2
MISCELLANEOUS
Section 2.1 Effect of Amendments; Full Force and Effect. Except as otherwise provided herein, the Recapitalization Agreement shall remain in full force and effect, and from and after the execution hereof, the Recapitalization Agreement and this Amendment shall be read together as one single agreement.
Section 2.2 Notices. Except as expressly set forth to the contrary in this Agreement, all notices, requests or consents provided for or required to be given hereunder shall be in writing and shall be deemed to be duly given if personally delivered, telecopied and confirmed, or mailed by certified mail, return receipt requested, or nationally recognized overnight delivery service with proof of receipt maintained, at to following addresses (or any other address that any such party may designate by written notice to the other parties):
If the Indigo Equityholders:
c/o Indigo Partners LLC 2525 E. Camelback Road Suite 800 Phoenix, AZ 85016 Facsimile: (602) 224-1555 Attn: William A. Franke
If to the Oaktree Equityholders:
c/o Oaktree Capital Management, LLC 333 South Grand Avenue, 28th Floor Los Angeles, CA 90401 Facsimile: (213) 830-6394 Attn: Jordon L. Kruse
If to the Company:
Spirit Airlines, Inc. 2800 Executive Way Miramar, FL 33025 Facsimile: (954) 447-7979 Attn: Chief Executive Officer General Counsel | ||||
With a copy (which shall not constitute notice) to: | ||||
Latham & Watkins LLP 140 Scott Drive Menlo Park, CA 94025 | ||||
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Facsimile: (650) 463-2600 Attn: Anthony J. Richmond
If to any other Equityholder:
To the address set forth on the signature page hereto. | ||||
Any such notice shall, if delivered personally, be deemed received upon delivery; shall, if delivered by telecopy, be deemed received on the first Business Day following confirmation; shall, if delivered by nationally recognized overnight delivery service, be deemed received the first Business Day after being sent; and shall, if delivered by mail, be deemed received upon the earlier of actual receipt thereof or five (5) Business Days after the date of deposit in the United States mail. Whenever any notice is required to be given by law or this Agreement, a written waiver thereof, signed by the Person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.
Section 2.3 Governing Law; Submission to Process. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS ITSELF AND EACH OTHER RELATED PERSON TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE STATE OF DELAWARE AND AGREES AND CONSENTS THAT SERVICE OF PROCESS MAY BE MADE UPON IT OR ANY OF ITS SUBSIDIARIES IN ANY LEGAL PROCEEDING RELATING TO THE THIS AGREEMENT. EACH OF THE PARTIES HERE IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section 2.4 Waiver of Jury Trial, Punitive Damages, Etc. EACH PARTY HERETO HEREBY:
(a)KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVE, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR DIRECTLY OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR TRANSACTIONS CONTEMPLATED HEREBY OR ASSOCIATED HEREWITH, BEFORE OR AFTER MATURITY;
(b)CERTIFY THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY
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WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS; AND
(c)ACKNOWLEDGE THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION.
Section 2.5 Entire Agreement. This Amendment and the documents and exhibits referenced herein (including the Recapitalization Agreement) sets forth the entire understanding of the parties hereto with respect to the subject matter hereof. There are no agreements, representations, warranties, covenants or understandings with respect to the subject matter hereof or thereof other than those expressly set forth herein and therein. This Amendment supersedes all other prior agreements and understandings between the parties with respect to such subject matter.
Section 2.6 Assignment; Successors and Assigns. This Agreement shall be binding upon the parties hereto and their successors and assigns and inure to the benefit of the parties hereto and their successors and assigns;provided,however, that the Company may not delegate or assign any of its obligations hereunder, and any purported delegation or assignment shall be void, unless the Company has obtained the prior written consent of the Requisite Equityholders to such delegation or assignment, which consent the Requisite Equityholders may provide in their sole and absolute discretion. No Person, other than the parties hereto and their permitted successors and assigns, shall have any rights hereunder or be entitled to rely on this Agreement and all third-party beneficiary rights are hereby expressly disclaimed.
Section 2.7 Counterparts. This Agreement and any amendment hereto may be signed in any number of separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one Agreement (or amendment, as applicable). Any signature page delivered electronically or by facsimile (including without limitation transmission by Portable Document Format or other fixed image form) shall be binding to the same extent as an original signature page.
Section 2.8 Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.
Section 2.9 Specific Performance. The parties hereto recognizes that money damages may be inadequate to compensate the other parties for a breach of its obligations hereunder, and the irrevocably agrees that the other parties shall be entitled to the remedy of specific performance or the granting of such other equitable remedies as may be awarded by a court of competent jurisdiction in order to afford the parties to this Agreement the benefits of this Agreement and that each party shall not object and hereby waive any right to object to such remedy or such granting of other equitable remedies on the grounds that money damages will be sufficient to compensate the parties hereto.
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Section 2.10 Further Assurances. The parties hereto will sign such further documents, cause such meetings to be held, resolutions passed, exercise their votes and do and perform and cause to be done such further acts and things necessary, proper or advisable in order to give full effect to this Agreement and every provision hereof.
(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.
SPIRIT AIRLINES, INC.,
a Delaware corporation
By:__________________________________
Name:
Title:
OCM SPIRIT HOLDINGS II, LLC
By: Oaktree Capital Management, L.P.,
its managing member
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
OCM SPIRIT HOLDINGS III, LLC
By: Oaktree Capital Management, L.P.,
its managing member
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
OCM SPIRIT HOLDINGS III-A, LLC
By: Oaktree Capital Management, L.P.,
its managing member
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
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OCM SPIRIT HOLDINGS , LLC
By: Oaktree Capital Management, L.P.,
its managing member
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
POF SPIRIT FOREIGN HOLDINGS, LLC
By: Oaktree Capital Management, L.P.,
its managing member
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
OCM PRINCIPAL OPPORTUNITIES FUND
II, L.P.
By: Oaktree Fund GP I, L.P.
Its: General Partner
By:___________________________
Name:
Title: Authorized Signatory
By:___________________________
Name:
Title: Authorized Signatory
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OCM PRINCIPAL OPPORTUNITIES FUND
III, L.P.
By: OCM Principal Opportunities Fund III GP,
L.P.
Its: General Partner
By: Oaktree Fund GP I, L.P.
Its: General Partner
By: ___________________________
Name:
Title: Authorized Signatory
By: ___________________________
Name:
Title: Authorized Signatory
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INDIGO MIRAMAR LLC, a Delaware limited
liability company
| By: | INDIGO MANAGEMENT LLC, a |
| Delaware limited liability company, its |
| manager |
| By: | _________________________________ |
Name: William A. Franke
Its: Manager
INDIGO FLORIDA, L.P., a Cayman Islands
exempted limited partnership
| By: | INDIGO PACIFIC PARTNERS L.P., |
| a Cayman Islands exempted limited |
| partnership, its general partner |
| By: | INDIGO PACIFIC MANAGEMENT LP, |
| A Cayman Islands exempted limited |
| partnership, its general partner |
| By: | INDIGO PACIFIC CAPITAL LLC, |
| a Delaware limited liability company, its |
| general partner |
| By: | INDIGO PACIFIC PARTNERS LLC, |
| a Delaware limited liability company, its sole member |
| By: | _________________________________ |
Name: William A. Franke
Its: Managing Member
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INDIGO PARTNERS LLC
| By: | _________________________________ |
Name: William A. Franke
Its: President and Managing Partner
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