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EXHIBIT 4.4(c)
Second Amendment to the Revolving Credit Agreement dated as of November 25,
1992, among Hudson General Aviation Services Inc., ABN Amro Bank Canada and The
Chase Manhattan Bank of Canada individually and as successor agent, dated as of
June 1, 1996.
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HUDSON GENERAL AVIATION SERVICES INC./
SOCIETE DE SERVICES HUDSON GENERAL (AVIATION) INC.
SECOND AMENDMENT ("Amendment"), dated as of June 1, 1996,
among Hudson General Aviation Services Inc./Societe de Services Hudson General
(Aviation) Inc. ("Aviation"), the banking institutions party to the Credit
Agreement referred to below (the "Banks"), and The Chase Manhattan Bank of
Canada as successor agent for itself and the Banks (the "Agent").
(a) the Revolving Credit Agreement, dated as of
November 25, 1992 and amended as of March 15, 1995 (the "Credit Agreement"),
among Aviation, the banking institutions named therein and Bank of Boston Canada
as agent for itself and the other banking institutions and (b) the Resignation
and Appointment Agreement, dated as of May 1, 1995, whereby Bank of Boston
Canada resigned as agent and The Chase Manhattan Bank of Canada was appointed as
successor agent for itself and the other banking institutions under the Credit
Agreement and the other Loan Documents.
WHEREAS Hudson General Corporation ("Hudson General") and
Hudson General LLC ("LLC") have entered into an Amended and Restated Revolving
Credit Agreement dated as of November 25, 1992 and amended and restated as of
June 1, 1996 among Hudson General, LLC, The First National Bank of Boston,
European American Bank, The Chase Manhattan Bank N.A. and such other banks as
may become parties thereto from time to time, as the same may be amended,
supplemented, replaced or restated from time to time;
AND WHEREAS, Hudson General has formed LLC and Hudson General
and its subsidiaries have transferred to LLC substantially all of the assets of
their aviation services business, including, without limitation, all of the
shares of Aviation (the "Aviation Services Business") in accordance with the
terms of that certain Unit Purchase and Option Agreement (as supplemented to the
date hereof, the "Purchase Agreement") dated February 27, 1996 between Hudson
General and Lufthansa Airport and Ground Services GmbH;
AND WHEREAS LLC wishes to assume all of Hudson General's
obligations under the Guaranty.
NOW THEREFORE for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged by the parties hereto, the
parties hereby agree as follows:
2. Capitalized terms which are used herein without definition
and which are defined in the Credit Agreement shall have the same meanings
herein as therein.
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3. Each of the Banks and the Agent hereby consent to (a) the
transfer by Hudson General and its subsidiaries to LLC of substantially all of
the assets of the Aviation Services Business, including the transfer of all of
the shares of Aviation, in accordance with the terms of the Purchase Agreement;
(b) the amendment and restatement of the Guaranty to be delivered in accordance
with Section 28(a)(iii) of this Amendment; (c) the amendment and restatement of
the Assignment, Postponement and Subordination and Intercreditor Agreement to be
delivered in accordance with Section 28(a)(ii) of this Amendment; (d) the
amendment and restatement of the U.S. Loan Agreement as required by Section
28(b) of this Amendment; and (e) the amendment and restatement of the U.S.
Security Agreement as required by Section 28(a)(iii) of this Amendment.
4. Except as expressly provided for herein, as of the date
hereof, all references in the Credit Agreement, including for greater certainty,
Exhibit "A" thereto, to Hudson General shall be deemed to be references to LLC.
5. Notwithstanding Section 3 of this Amendment, references to
Hudson General in Sections 3.5(a), 3.6(a), 4.6, 4.7, and 9 (e) of the Credit
Agreement shall remain references to Hudson General.
6. Section 2.1(b) of the Credit Agreement is hereby amended by
deleting "three and one-half percentage points (3-1/2%)" where it appears in the
sixth sentence and substituting "two percentage points (2%)".
7. Section 2.4(c)(iii) of the Credit Agreement is hereby
amended by deleting "including" and substituting "excluding" therefor.
8. Section 3.5 of the Credit Agreement is hereby amended by
inserting "(a)" following "Financial Statements", by deleting all references to
"Subsidiaries" in Section 3.5(a) and substituting "HGC Subsidiaries" therefor
and by adding the following as Section 3.5(b):
"(b) Aviation has previously furnished to the Banks unaudited
pro forma consolidated financial statements of LLC and its Subsidiaries
for the fiscal year ended June 30, 1995, and at December 31, 1995 and
for the six-month period ended on such date. Such financial statements
give effect to the Contribution (as defined in the U.S. Loan Agreement)
and the other transactions contemplated under the Purchase Agreement
(as defined in the U.S. Loan Agreement), were prepared in accordance
with generally accepted accounting principles and fairly present the
pro forma consolidated assets and liabilities of LLC and its
Subsidiaries and the consolidated results of operations of LLC and its
Subsidiaries at the dates, and for the periods, to which they relate."
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9. Section 3.6 of the Credit Agreement is hereby amended by
inserting "(a)" following "Changes", by inserting "and the Contribution (as
defined in the U.S. Loan Agreement)" following "ordinary course of business,",
by deleting all references to "Subsidiaries" in Section 3.6(a) and substituting
"HGC Subsidiaries" therefor and by adding the following as Section 3.6(b):
"(b) Since December 31, 1995, there have been no changes in
the Aviation Services Business or the consolidated financial condition
or results of operations of the Aviation Services Business, other than
changes in the ordinary course of business, the effect of which has
not, in the aggregate, been materially adverse to the business or
financial condition of LLC and its Subsidiaries, taken as a whole.
Since the date of LLC's formation, there have been no changes in the
assets, liabilities, financial condition or business of LLC or its
Subsidiaries, other than changes in the ordinary course of business and
the Contribution (as defined in the U.S. Loan Agreement), the effect of
which has not, in the aggregate, been materially adverse to the
business or financial condition of LLC and its Subsidiaries, taken as a
whole."
10. Section 4.3 of the Credit Agreement is hereby amended by
adding "in all material respects" following "Funding Date and" on the second
line of such section.
11. Section 4.4 of the Credit Agreement is hereby deleted and
the following substituted therefor:
"No Adverse Change. (a) As of the date of any Loan there shall
have been no material adverse change since June 30, 1992 in the
business or financial affairs of Hudson General and the HGC
Subsidiaries taken as a whole.
(b) As of the date of any Loan (i) there shall be been no
material adverse change since December 31, 1995 in the Aviation
Services Business (as defined in the U.S. Loan Agreement) and (ii)
there shall have been no material adverse change since the date of the
formation of LLC in the business or financial affairs of LLC and its
Subsidiaries, taken as a whole."
12. Section 5.2(a) is hereby deleted and the following
substituted therefor:
"as soon as available but in any event within ninety days
after the end of each of its fiscal years, consolidated and
consolidating balance sheets of LLC and its Subsidiaries as at the end
of, and the related consolidated and consolidating statements of income
and consolidated statements of cash flows for, such year, and all such
statements shall be in reasonable detail, prepared in accordance with
generally accepted accounting principles and accompanied by the opinion
(only if such financial statements are required to be publicly
published) of (in form and substance reasonably satisfactory to the
Banks)
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independent public accountants of nationally recognized standing
selected by LLC and, concurrently with such financial statements, (if
such financial statements are required to be publicly published) a
written statement by such accountants that, in the making of the audit
necessary for their report and opinion upon such financial statements
(but without any special or additional audit procedures for the
purpose), they have obtained no knowledge of any Default, or if in the
opinion of such accountants any Default exists, they shall disclose in
such written statement the nature and status thereof.
13. Section 5.8(b) of the Credit Agreement is hereby deleted
and the following substituted therefor:
"investments in marketable, investment grade, direct or
guaranteed obligations of the Government of Canada or any province or
municipality thereof which mature within ten years from the date of
purchase."
14. Section 5.8(f) of the Credit Agreement is hereby amended
by adding "in the event that such Subsidiary has a net worth in excess of
$500,000" following the text "provided that," in the third line of such section.
15. Section 5.8 of the Credit Agreement is hereby amended by
adding the following as Sections 5.8(g) and 5.8(h) respectively:
"(g) investments in demand deposits, certificates of deposits,
time deposits and notes of any Bank or any Canadian bank having total
capital and unimpaired surplus of at least $100,000,000;"
"(h) securities commonly known as "commercial paper", or
corporate bonds which mature within ten years from the date of
purchase, in each case issued by a corporation organized and existing
under the laws of the United States of America or any state thereof or
the laws of Canada or any province thereof which at the time of
purchase have been rated by either or both of Moody's Investors
Service, Inc. and Standard and Poor's Ratings Group and the ratings for
such commercial paper are not less than "P-1" if rated by Moody's
Investors Service, Inc. and not less than "A-1" if rated by Standard
and Poor's Ratings Group or, for such bonds, are not less than "Aa" if
rated by Moody's Investors Service, Inc. and not less than "AA" if
rated by Standard & Poor's Ratings Group."
16. Sections 6.7, 6.8 and 6.9 of the Credit Agreement are
hereby deleted and the following substituted therefor:
"6.7 Prior to the Collateral Release Date or the HGC Release
Date (each as defined in the U.S. Loan Agreement) any person or group
of persons (within the meaning of
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Section 13 or 14 of the Securities Exchange Act of 1934, as amended),
other than any employee benefit plan or plans (within the meaning of
Section 3(3) of ERISA, as defined in the U.S. Loan Agreement) of Hudson
General or any HGC Subsidiary and other than shareholders of Hudson
General which have filed with the Securities and Exchange Commission
prior to the date of the Proxy (as defined in the U.S. Loan Agreement)
Schedules 13D or 13G pursuant to the Securities Exchange Act of 1934,
as amended, with respect to the securities of Hudson General shall
hereafter have acquired beneficial ownership (within the meaning of
Rule 13d-3 promulgated by the Securities and Exchange Commission under
said act) of more than 50% in voting power of the outstanding voting
stock of Hudson General, or during any period of twelve consecutive
calendar months, individuals who were directors of Hudson General on
the first day of such period shall cease to constitute a majority of
the board of directors of Hudson General, other than because of
replacement as a result of death or disability of one or more such
directors or replacement with the approval of a majority of those
individuals who were members of the board of directors of Hudson
General on the first day of such period or a majority of the directors
of Hudson General appointed thereafter with the approval of such
individuals;
6.8 Hudson General (prior to the Collateral Release Date or
the HGC Release Date, each as defined in the U.S. Loan Agreement), any
HGC Subsidiary (prior to the Collateral Release Date or the HGC Release
Date), LLC or any Subsidiary of LLC shall make an assignment for the
benefit of creditors, or admit in writing its inability to pay or
generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver of Hudson General, LLC or any HGC Subsidiary or
Subsidiary of LLC or of any substantial part of the assets of Hudson
General, LLC or any HGC Subsidiary or any Subsidiary of LLC or shall
commence any case or other proceeding relating to Hudson General, LLC
or any HGC Subsidiary or any Subsidiary of LLC under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or
hereafter in effect, or shall take any action to authorize or in
furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall
be commenced against Hudson General (prior to the Collateral Release
Date or the HGC Release Date), LLC, any HGC Subsidiary (prior to the
Collateral Release Date or the HGC Release Date) or any Subsidiary of
LLC and Hudson General, LLC or any of such Subsidiaries or HGC
Subsidiaries shall indicate its approval thereof, consent thereto or
acquiescence therein;
6.9 a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating Hudson General (prior
to the Collateral Release Date or the HGC Release Date, each as defined
in the U.S. Loan Agreement), LLC, any HGC Subsidiary (prior to the
Collateral Release Date or the HGC Release Date) or any Subsidiary of
LLC bankrupt or insolvent, or approving a petition in any such case or
other proceeding, or a
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decree or order for relief is entered in respect of Hudson General
(prior to the Collateral Release Date or the HGC Release Date), LLC,
any HGC Subsidiary (prior to the Collateral Release Date or the HGC
Release Date) or any Subsidiary of LLC in an involuntary case under
federal bankruptcy laws as now or hereafter constituted;"
17. Section 6.13 of the Credit Agreement is hereby deleted and
the following substituted therefor:
"If LLC shall cease to own 100% of the issued and outstanding
capital stock of Aviation."
18. Article 6 of the Credit Agreement is hereby amended by
adding the following as Section 6.15:
"6.15 Hudson General shall own, directly or indirectly, less
than 51% of the membership interests of LLC."
19. Sections 9(b) and (c) of the Credit Agreement are hereby
deleted and the following substituted therefor:
(b) The Obligations shall be guaranteed by LLC pursuant to an
amendment and restatement of the Guaranty and all obligations of LLC
thereunder shall be guaranteed (such guarantees to be in the form or
forms contemplated in the U.S. Loan Agreement) by the other Guarantors
having a net worth in excess of $500,000 (the guaranties of the
Guarantors are collectively referred to as the "Guaranty"). The
obligations of each Secured Guarantor under such corporation's Guaranty
shall be secured by (i) in the case of each Secured Guarantor other
than LLC, a perfected first priority security interest (subject only to
liens permitted under the U.S. Loan Agreement and entitled to priority
under applicable law) in the Subsidiary Collateral (as defined in the
U.S. Loan Agreement) pursuant to and to the extent required by the
terms of the U.S. Security Agreement executed and delivered by such
Secured Guarantor and (ii) in the case of LLC, in addition to the
foregoing, (A) a perfected first priority security interest (subject
only to the liens permitted under the U.S. Loan Agreement and entitled
to priority under applicable law) in the Collateral pursuant to and to
the extent required by the terms of the U.S. Security Agreement to
which it is a party and (B) the Assignment, Postponement and
Subordination and Intercreditor Agreement.
(c) LLC shall and it shall cause each of the other Guarantors
having a net worth in excess of $500,000 to:
(i) execute and deliver to each of the Agent and
the Banks, a Guaranty;
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(ii) in the case of LLC only, execute and deliver
to the Agent and the Banks, the Assignment,
Postponement and Subordination and
Intercreditor Agreement;
(iii) in the case of each Guarantor required to
deliver a Guaranty and execute and deliver
to the Agent for the benefit of the Banks,
the Agent, the lenders which are or may
become parties to the U.S. Loan Agreement
and the agent thereunder, U.S. Security
Agreements and all other documents and
instruments required to be delivered
pursuant thereto; and
(iv) execute and deliver all other documents and
instruments, including, without limitation,
corporate authority documents as the Banks
may reasonably request.
20. Section 10 of the Credit Agreement is hereby amended by
adding the following as Section 10.17:
"HGC Release Date. Upon and after the HGC Release Date (as
defined in the U.S. Loan Agreement), no Default or event with the
passage of time or the giving of notice (or both) which would become a
Default (other than with respect to the Defaults set forth in Sections
6.7, 6.8 and 6.9 hereof unless, at such time, the Collateral Release
Date (as defined in the U.S. Loan Agreement) has occurred) or any
failure to satisfy a condition precedent shall be deemed to occur or
arise as a result of any event or matter related to Hudson General."
21. The definition of "Commitment Percentage" set forth in
Exhibit "A" to the Credit Agreement is hereby amended by deleting such
definition in its entirety, and substituting therefor the following:
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Commitment Percentage - With respect to each Bank, the
percentage set forth opposite its name below as such Bank's
percentage of the aggregate Commitments of all of the Banks
(subject to adjustments permitted by the terms of the Credit
Agreement):
BANK COMMITMENT
PERCENTAGE
Chase Canada 80%
ABN Canada 20%
Total 100%
22. The definitions of "Guarantor(s)" and "Secured
Guarantor(s)" in Exhibit "A" to the Credit Agreement are hereby deleted and the
following shall be substituted for each such definition:
"Collectively, all of and individually, each of, LLC and all
Subsidiaries of LLC with a net worth in excess of $500,000 organized
under the laws of any State of the United States of America and
acquired or formed by LLC after the date hereof."
23. The definition of "Guaranty" in Exhibit "A" to the Credit
Agreement is hereby deleted and the following substituted therefor:
"has the meaning ascribed to such term in Section 9(b) and
includes amendments, supplements, replacements or restatements made
from time to time."
24. The following additional definition is hereby added to
Exhibit "A" to the Credit Agreement in the appropriate alphabetical order:
"HGC Subsidiary - Any corporation, association, joint stock
company, business trust or other similar organization of whose voting
stock Hudson General owns or controls, directly or indirectly, more
than 50%."
25. The Definition of "Initial Revolving Period" in Exhibit
"A" to the Credit Agreement is hereby amended by deleting "December 31, 1996"
and substituting "June 30, 1998" therefor.
26. The definition of "Reduction Commencement Date" in Exhibit
"A" to the Credit Agreement is hereby amended by deleting "December 31, 1996"
and substituting "June 30, 1998" therefor.
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27. Effective upon the execution of this Amendment, Schedule
3.8 to the Credit Agreement is hereby deleted and Schedule 3.8 in the form
attached to this Amendment shall be substituted therefor.
28. Aviation represents and warrants to the Banks that (a)
this Amendment and the Credit Agreement as further amended hereby (the "Amended
Credit Agreement") are its legal, valid and binding obligations, enforceable
against Aviation in accordance with their terms, (b) this Amendment and the
Amended Credit Agreement do not conflict with any charter document, agreement,
instrument or undertaking binding upon Aviation or any of its properties, (c) no
Default, or situation which with the giving of notice or the passage of time or
both would become a Default, now exists or will exist after giving effect to
this Amendment, and (d) all of the representations and warranties made by Hudson
General and LLC in the U.S. Loan Agreement are true and correct as of the date
hereof.
29. This Amendment shall become effective as of the date
hereof upon satisfaction of each of the following conditions precedent:
(a) Delivery.
(i) Aviation, the Banks and the Agent shall have
executed and delivered this Amendment;
(ii) The Banks, the Agent, Aviation, and LLC
shall have executed and delivered an
amendment and restatement of the Assignment,
Postponement and Subordination and
Intercreditor Agreement as acknowledged by
Hudson General;
(iii) LLC shall have delivered an amendment and
restatement of the Guaranty as acknowledged
by Hudson General and LLC and Hudson General
shall have delivered an amendment and
restatement of the U.S. Security Agreement
to which Hudson General is a party;
(iv) LLC shall have delivered to the Agent a copy
of the Certificate required to be delivered
to the Agent (as defined in the U.S. Loan
Agreement) pursuant to Section 4A.3.(c) of
the U.S. Loan Agreement;
(v) Chase Canada shall have assigned such
interests, rights and obligations under the
Credit Agreement to ABN Canada as shall be
necessary to achieve the Commitment
Percentages set forth in this Amendment; and
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(vi) Aviation shall have delivered to the Agent
amended and restated Revolving Credit Notes
in favour of each of the Banks.
(b) U.S. Loan Agreement. An amendment and restatement of the
U.S. Loan Agreement which is satisfactory to the Banks and the Agent in all
respects shall have been executed and delivered by each of Hudson General, LLC
and the lenders which are parties to the U.S. Loan Agreement.
(c) Lien and Security. The Guaranty, the Assignment,
Postponement and Subordination and Intercreditor Agreement and the U.S. Security
Agreement to which LLC is a party, in each case as amended in accordance with
clause (a) of this Section 28, shall (except as enumerated in clauses (c) and
(d) of Section 18 of the U.S. Security Agreement if such actions are not then
required) be effective to continue to create in favour of the Agent and the
Banks the legal, valid and enforceable first (except for liens expressly
permitted hereunder entitled to priority under applicable law) security interest
in the Collateral and all filings, recordings, deliveries of instruments and
other actions necessary or desirable in the opinion of the Agent to protect and
preserve such security interests shall have been duly effected and the Agent and
the Banks shall have received evidence thereof in form and substance
satisfactory to the Agent and the Banks. The Collateral and the Agent's and the
Banks' rights with respect thereto shall not be subject to any setoff, claims,
withholdings or other defenses and the Security Documents shall have been duly
registered or recorded (as a first priority assignment of and perfected security
interest in, subject to the terms of such agreements, the Collateral) in each
jurisdiction where such filing is necessary or of advantage (determined in the
Banks' sole discretion).
(d) Corporate Standing and Action. Each of the Banks shall
have received (i) a Certificate of Compliance from Industry Canada as to the
good standing of Aviation as of a recent date, and (ii) a certificate of an
Authorized Officer of Aviation, dated the date hereof, certifying (A) that
attached thereto is a true and complete copy of the Articles of Amalgamation,
all Shareholder Agreements and the bylaws of Aviation, each as amended to the
date hereof or that the Articles of Amalgamation, Shareholder Agreements and
bylaws of Aviation have not been modified, amended or supplemented since
November 25, 1992, (B) that attached thereto is a true and complete copy of
resolutions of the sole director of Aviation authorizing the execution and
delivery of this Amendment and all documents and instruments executed in
connection therewith, which resolutions are in full force and effect without
modification on the date hereof, and (C) the incumbency and signatures of the
officers of Aviation or that there have been no changes in such incumbency and
signatures since November 25, 1992.
(e) Opinions of Counsel. Each of the Banks and the Agent shall
have received a favourable legal opinion addressed to the Banks and the Agent,
dated as of the date hereof, in form and substance satisfactory to the Banks and
the Agent, from each of Noah Rockowitz, Secretary and Counsel to Aviation, and
Fraser & Beatty, Ontario legal counsel to Aviation.
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(f) Proceedings and Documents. All proceedings in connection
with the transaction contemplated by this Amendment and all documents incident
hereto shall be satisfactory in form and substance to the Agent, and the Agent
shall have received all information and such counterpart originals or certified
or other copies of such documents as the Agent may reasonably request.
30. Miscellaneous. The Credit Agreement and all of the Loan
Documents are each confirmed as being in full force and effect. This Amendment,
the Credit Agreement and the other Loan Documents constitute the entire
understanding of the parties with respect to the subject matter hereof and
thereof and supersede all prior understandings and agreements, whether written
or oral. This Amendment and the Credit Agreement shall be read and construed as
one agreement, and, except as expressly amended hereby, the Credit Agreement
remains unchanged. The headings in this Amendment are for convenience of
reference only and shall not alter, limit or otherwise affect the meaning
hereof. This Amendment is a Loan Document as defined in the Credit Agreement and
may be executed in any number of counterparts, which together shall constitute
one instrument, and shall bind and inure to the benefit of the parties and their
respective successors and permitted assigns. Aviation shall pay all costs and
expenses, including reasonable legal fees and disbursements of the Agent's
counsel, incurred by the Agent in preparing this Amendment. THIS AMENDMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS (OTHER THAN THE
CONFLICT OF LAWS RULES) OF THE PROVINCE OF ONTARIO AND LAWS OF CANADA APPLICABLE
THEREIN.
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IN WITNESS WHEREOF, each of the undersigned has executed this
Amendment under seal by a duly authorized officer as of the date first set forth
above.
HUDSON GENERAL AVIATION THE CHASE MANHATTAN BANK
SERVICES INC./SOCIETE DE OF CANADA, FOR ITSELF AND AS AGENT
SERVICES HUDSON GENERAL
(AVIATION) INC.
By: ________________________________ By: _______________________________
Title: Title:
ABN AMRO BANK CANADA
By: ________________________________
Title:
Consented to:
THE FIRST NATIONAL BANK OF BOSTON
By: ________________________________
Title: