WAIVER AND AMENDMENT NUMBER FOUR
TO LOAN AGREEMENT
This
WAIVER AND AMENDMENT NUMBER FOUR TO LOAN AGREEMENT (this
“
Agreement ”),
dated as of December 27, 2007, among ATLANTIC AVIATION FBO INC., a
Delaware corporation (the “
Borrower ”)
and the several banks and other financial institutions signatories
hereto (the “
Lender Parties ”),
and acknowledged by 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 (the “
Seven Bar Acquisition ”),
pursuant to that certain Stock Purchase Agreement dated as of
December 27, 2007, among the Borrower, as buyer, Seven Bar
Enterprises, Inc. (the “
Seven Bar Seller ”),
as seller, the A. Wade Black Trust, and A. Wade Black (the
“
Seven Bar Purchase Agreement ”),
of 100% of the Equity Securities of each of Sun Valley Aviation,
Inc., an Idaho corporation (“
Sun Valley ”),
SB Aviation Group, Inc. a New Mexico corporation (“
SB Aviation ”)
and Seven Bar Aviation, Inc., a New Mexico corporation
(“
Seven Bar ”,
and jointly with Sun Valley and SB Aviation, the “
Seven Bar Companies ”),
which Seven Bar Companies own and operate Fixed Based Operations
businesses at Friedman
Memorial Airport in Hailey, Idaho; Four
Corners Regional Airport in Farmington, New Mexico;
and
Albuquerque International Airport in Albuquerque, New Mexico,
respectively (collectively, the “
Airports ”).
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 Seven Bar Acquisition, (b)
waive the provisions of Sections 7.4 and 7.5 of the Loan
Agreement to permit the Seven Bar 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 waivers, 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 .
Effective as of the Amendment Effective Date (as defined in Section
7), the Loan Agreement shall be amended as follows:
(a)
Section 7.1 (Indebtedness and Guarantee Obligations)
.
(i) The
following new clause shall be inserted as new clause (h)
immediately following the currently existing clause (g) of
Section 7.1 of the Loan Agreement:
“(h)
Indebtedness of (i) the Borrower incurred under that
certain Stock Purchase Agreement dated as of December 27,
2007, among the Borrower, as buyer, Seven Bar Enterprises,
Inc., as seller, the A. Wade Black Trust, and A. Wade Black
(the “
Seven Bar SPA ”)
related to the acquisition by the Borrower of all of the Equity
Securities of Sun Valley Aviation, Inc., SB Aviation Group, and
Seven Bar Aviation, Inc. (the “
Seven Bar Companies ”),
and (ii) any of the Seven Bar Companies of up to $500,000.00
in the aggregate, owed to their respective fuel suppliers and
evidenced by the promissory notes listed on Schedule 5.28, as
amended,
provided that
the principal amount of all of the Indebtedness permitted pursuant
to this clause (h) other than the obligation of the Borrower to pay
the ‘Preliminary Purchase Price’ (as such term is
defined in the Seven Bar SPA) shall be included in the calculation
of the cap set forth in the proviso to clause (f) of this Section
7.1.”
(ii)
Currently existing clause (h) of Section 7.1 of the Loan
Agreement shall be renumbered as clause (i).
(b)
Appendix A (Definitions and Rules of Interpretation)
.
(i) The
definition of “Loan Documents” shall be amended by
inserting the words “the Seven Bar Investor Contribution
Agreement, ” immediately after the words “the
Investor Contribution Agreement, “ in the third line
thereof.
(ii) The
following definition shall be inserted immediately following
the definition of “Security
Documents”:
“
Seven Bar Investor Contribution Agreement ”
means the letter agreement by the Investor and acknowledged by the
Borrower and the Administrative Agent dated as of December 27,
2007.”
Section
3.
Waiver Relating to Seven Bar Purchase Agreement and Seven Bar
Acquisition .
(a)
Seven Bar Purchase Agreement .
Effective as of the Amendment Effective Date, the Lender Parties
hereby waive any non-compliance with Sections 7.4 or 7.5 of the
Loan Agreement resulting from the Borrower’s execution of the
Seven Bar Purchase Agreement.
(b)
Seven Bar Acquisition .
Effective as of the Acquisition Effective Date (as defined in
Section 8) the Lender Parties hereby waive any non-compliance with
Sections 7.4 or 7.5 of the Loan Agreement resulting from the
consummation by the Borrower of the Seven Bar
Acquisition.
Section
4.
Approval of Amendments to Schedules .
Effective as of the Acquisition Effective Date, the Lender Parties
hereby approve the supplements to the Schedules to the Loan
Agreement set forth in Attachment 1 hereto.
Section
5.
Developments Prior to Closing of Seven Bar Acquisition
.
(a)
Notice of Developments .
From
the date of this Agreement through the closing or earlier
termination of the Seven Bar Purchase Agreement, the Borrower
shall promptly notify the Administrative Agent in writing of
any notice (a “
Seller Breach Notice ”)
it may receive from the Seven Bar Seller of any development causing
a breach of any of the representations and warranties in Sections 3
or 4 of the Seven Bar Purchase Agreement (attaching a copy of such
Seller Breach Notice). Upon receipt of any such notice, the
Administrative Agent, acting at the direction of the Required
Lenders, may terminate this Agreement by written notice to the
Borrower if, in the reasonable opinion of the Required Lenders,
such development has had ,
or is reasonably expected to have, individually or in the
aggregate, a
‘Material Adverse Effect’
(as such term is defined in the Seven Bar Purchase Agreement). The
termination of this Agreement will result in the waiver set forth
in Section 3(a) hereof and the approval set forth in Section 4
hereof being null and void.
(b)
Revisions to Schedules .
If
the
Required Lenders fail to exercise the termination right
pursuant to the foregoing paragraph (a) within six (6)
Business Days after receiving written notice from the
Borrower, the Required Lenders shall be deemed to have
accepted that (i) such Seller Breach Notice shall be
deemed to have amended the disclosure schedules to the Seven
Bar Purchase Agreement and to have qualified the
representations and warranties contained in the Seven Bar
Stock Purchase Agreement for purposes of determining the
accuracy of representations and warranties at the closing of
the Seven Bar Acquisition, and (ii) the Borrower shall
have the right to amend the supplements to the Schedules to
the Loan Agreement set forth in Attachment 1 hereto as
necessary to reflect the developments described in such Seller
Breach Notice.
Section
6.
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
7.
Amendment Effective Date .
Except for the waiver set forth in Section 3(b) above, this
Agreement shall become effective on the first date (the
“
Amendment Effective 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; and
(b)
The Seven Bar 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.
Section
8.
Acquisition Effective Date .
The waiver set forth in Section 3(b) above shall become effective
on the first date (the “
Acquisition Effective Date ”)
on which the Administrative Agent shall have received all of the
following:
(a)
All certificates, legal opinions, amendments to Security
Documents, agreements and other documents required to be
delivered or filed pursuant to Section 6.11 of the Loan
Agreement, in each case reasonably acceptable in form and
substance to the Administrative Agent;
(b)
Evidence reasonably satisfactory to the Administrative Agent
that (i) the ‘Preliminary Purchase Price’ (as
such term is defined in the Seven Bar Purchase Agreement) has
been paid in accordance with the Seven Bar Purchase Agreement;
(ii) all existing Indebtedness of the Seven Bar Companies
has b
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