FIRST AMENDMENT TO LETTER OF CREDIT FACILITY AGREEMENT
Exhibit
10.2
FIRST
AMENDMENT TO
THIS
FIRST AMENDMENT TO LETTER OF CREDIT FACILITY AGREEMENT (this
“Amendment”), is made and entered into as of
May 17, 2007, by and among ▇▇▇▇▇▇▇ GROUP INC., a Delaware
corporation (the “Borrower”), the several banks and other financial
institutions and lenders from time to time party hereto (the “Lenders”),
SUNTRUST BANK, in its capacity as administrative agent for the Lenders (the
“Administrative Agent”), and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as issuing bank (the “Issuing Bank”) and as Syndication Agent (the
“Syndication Agent”), and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as
Documentation Agent (the “Documentation Agent”).
W
I T N E S S E T H:
WHEREAS,
the Borrower, the Lenders and the Administrative Agent are parties to a certain
Letter of Credit Facility Agreement, dated as of August 3, 2006 (as amended,
restated, supplemented or otherwise modified from time to time, the
“Agreement”; capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the
Agreement), pursuant to which the Lenders have made certain financial
accommodations available to the Borrower;
WHEREAS,
the Borrower has requested that the Lenders and the Administrative Agent amend
certain provisions of the Agreement, and subject to the terms and conditions
hereof, the Lenders are willing to do so;
NOW,
THEREFORE, for good and valuable consideration, the sufficiency and receipt
of
all of which are acknowledged, the Borrower, the Lenders and the Administrative
Agent agree as follows:
1. Amendments.
Section
7.1(f) of the Agreement is hereby amended by replacing “$200,000,000” with
“$325,000,000”.
2. Conditions
to Effectiveness of this Amendment. Notwithstanding any
other provision of this Amendment and without affecting in any manner the rights
of the Lenders hereunder, it is understood and agreed that this Amendment shall
not become effective, and the Borrower shall have no rights under this
Amendment, until the Administrative Agent shall have received
(i) reimbursement or payment of its costs and expenses incurred in
connection with this Amendment or the Agreement (including reasonable fees,
charges and disbursements of King & Spalding LLP, counsel to the
Administrative Agent), and (ii) executed counterparts to this Amendment
from the Borrower, each of the Guarantors and the Lenders.
3. Representations
and Warranties. To induce the Lenders and the
Administrative Agent to enter into this Amendment, each Loan Party hereby
represents and warrants to the Lenders and the Administrative
Agent:
Each
Loan
Party (i) is duly organized, validly existing and in good standing as a
corporation, partnership or limited liability company under the laws of the
jurisdiction of its organization, (ii) has all requisite power and
authority to carry on its business as now conducted, and (iii) is duly
qualified to do business, and is in good standing, in each jurisdiction where
such qualification is required, except where a failure to be so qualified would
not reasonably be expected to result in a Material Adverse Effect;
The
execution, delivery and performance by each Loan Party of this Amendment
(i) are within such Loan Party’s organizational powers and have been duly
authorized by all necessary organizational, and if required, shareholder,
partner or member, action, (ii) do not require any consent or approval of,
registration or filing with, or any action by, any Governmental Authority,
except those as have been obtained or made and are in full force and effect,
(iii) will not violate any Requirements of Law applicable to Borrower or
any of its Subsidiaries or any judgment, order or ruling of any Governmental
Authority, (iv) will not violate or result in a default under any
indenture, material agreement or other material instrument binding on the
Borrower or any of its Subsidiaries or any of its assets or give rise to a
right
thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries and (v) will not result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Subsidiaries, except Liens
(if
any) created under the Loan Documents;
This
Amendment has been duly executed and delivered for the benefit of or on behalf
of each Loan Party and constitutes a legal, valid and binding obligation of
each
Loan Party, enforceable against such Loan Party in accordance with its terms
except as the enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors’ rights and
remedies in general; and
After
giving effect to this Amendment, the representations and warranties contained
in
the Agreement and the other Loan Documents are true and correct in all material
respects, and no Default or Event of Default has occurred and is continuing
as
of the date hereof.
4. Reaffirmations
and Acknowledgments.
Reaffirmation
of Guaranty. Each Guarantor consents to the execution and
delivery by the Borrower of this Amendment and jointly and severally ratify
and
confirm the terms of the Subsidiary Guaranty Agreement with respect to the
indebtedness now or hereafter outstanding under the Agreement as amended hereby
and all promissory notes issued thereunder. Each Guarantor acknowledges that,
notwithstanding anything to the contrary contained herein or in any other
document evidencing any indebtedness of the Borrower to the Lenders or any
other
obligation of the Borrower, or any actions now or hereafter taken by the Lenders
with respect to any obligation of the Borrower, the Subsidiary Guaranty
Agreement (i) is and shall continue to be a primary obligation of the
Guarantors, (ii) is and shall continue to be an absolute, unconditional,
joint and several, continuing and irrevocable guaranty of payment, and
(iii) is and shall continue to be in full force and effect in accordance
with its terms. Nothing contained herein to the contrary shall
release, discharge, modify, change or affect the original liability of the
Guarantors under the Subsidiary Guaranty Agreement.
Acknowledgment
of Perfection of Security Interest. Each Loan Party hereby
acknowledges that, as of the date hereof, the security interests and liens
granted to the Administrative Agent and the Lenders under the Agreement and
the
other Loan Documents are in full force and effect, are properly perfected and
are enforceable in accordance with the terms of the Agreement and the other
Loan
Documents.
5. Effect
of Amendment. Except as set forth expressly herein, all
terms of the Agreement, as amended hereby, and the other Loan Documents shall
be
and remain in full force and effect and shall constitute the legal, valid,
binding and enforceable obligations of the Borrower to the Lenders and the
Administrative Agent. The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of the Lenders under the Agreement, nor
constitute a waiver of any provision of the Agreement. This Amendment
shall constitute a Loan Document for all purposes of the Agreement.
6. Governing
Law. This Amendment shall be governed by, and construed
in accordance with, the internal laws of the State of New York and all
applicable federal laws of the United States of America.
7. No
Novation. This Amendment is not intended by the parties
to be, and shall not be construed to be, a novation of the Agreement or an
accord and satisfaction in regard thereto.
8. Costs
and Expenses. The Borrower agrees to pay on demand all
costs and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable fees and out-of-pocket expenses of outside counsel
for the Administrative Agent with respect thereto.
9. Counterparts. This
Amendment may be executed by one or more of the parties hereto in any number
of
separate counterparts, each of which shall be deemed an original and all of
which, taken together, shall be deemed to constitute one and the same
instrument. Delivery of an executed counterpart of this Amendment by
facsimile transmission or by electronic mail in pdf form shall be as effective
as delivery of a manually executed counterpart hereof.
10. Binding
Nature. This Amendment shall be binding upon and inure
to the benefit of the parties hereto, their respective successors,
successors-in-titles, and assigns.
11. Entire
Understanding. This Amendment sets forth the entire
understanding of the parties with respect to the matters set forth herein,
and
shall supersede any prior negotiations or agreements, whether written or oral,
with respect thereto.
[Signature
Pages To Follow]
52990-015776/4551026
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed, under seal in the case of the Borrower and the Guarantors, by their
respective authorized officers as of the day and year first above
written.
BORROWER:
▇▇▇▇▇▇▇
GROUP INC.
By:
Name:
Title:
GUARANTORS:
AIR
LOGISTICS, L.L.C.
By:
Name:
Title:
AIR
LOGISTICS OF ALASKA, INC.
By:
Name:
Title:
▇▇▇▇▇▇
CORPORATION
By:
Name:
Title:
▇▇▇▇▇▇
PRODUCTION MANAGEMENT,
INC.
By:
Name:
Title:
MEDIC
SYSTEMS, INC.
By:
Name:
Title:
AIRLOG
INTERNATIONAL, LTD.
By:
Name:
Title:
LENDERS:
SUNTRUST
BANK
as
Administrative Agent and as a Lender
By
Name:
Title:
▇▇
▇▇▇▇▇▇ CHASE BANK, NATIONAL ASSOCIATION, as Issuing Bank, as Syndication Agent
and as a Lender
By
Name:
Title:
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION as Documentation Agent and as a
Lender
By
Name:
Title:
WHITNEY
NATIONAL BANK, as a Lender
By
Name:
Title:
BANK
OF AMERICA, N.A., as a Lender
By
Name:
Title: