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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.
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ATLANTIC
AVIATION FBO INC.
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By:
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/s/
Louis T. Pepper
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| Name: Louis
T. Pepper |
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Title: Chief
Executive Officer
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AMENDMENT
NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
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