EXHIBIT 10.22
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this "Agreement"), entered into as of the
12th day of December, 2002, by and between WORLD AIRWAYS, INC., a Delaware
corporation, as pledgor (the "Pledgor"), and FOOTHILL CAPITAL CORPORATION, a
California corporation, as administrative agent for the Lender Group (as defined
in the Loan Agreement (as defined below)) (the "Agent").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Loan and Security Agreement of even
date herewith (as amended, restated, supplemented or otherwise modified from
time to time, the "Loan Agreement"), by and among the Pledgor and World Airways
Parts Company, LLC, a Delaware limited liability company, as borrowers (the
"Borrowers" and each a "Borrower"), the Agent, and the lenders identified on the
signature pages thereof (such lenders, together with their respective successors
and assigns, are hereinafter referred to, collectively, as the "Lenders" and
each, a "Lender"), the Lenders have agreed to make certain loans and other
financial accommodations to the Borrowers from time to time pursuant to the
terms and conditions thereof; and
WHEREAS, it is a condition precedent to the extension of credit under
the Loan Agreement that the Pledgor shall have granted the security interest
contemplated by this Agreement; and
WHEREAS, to secure the full and prompt payment or performance (as
applicable) of all covenants, agreements and liabilities of the Pledgor under
the Loan Documents (as defined in the Loan Agreement) and all now existing or
hereafter arising Obligations (as defined in the Loan Agreement), the Pledgor
has agreed to pledge to the Agent the Stock (as defined in the Loan Agreement)
owned by the Pledgor (collectively, the "Pledged Interests") in each of the
entities listed on Schedule 1 attached hereto (collectively, the "Pledged
Companies" and, individually, each a "Pledged Company");
NOW, THEREFORE, for and in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that capitalized terms used herein
without definition shall have the meanings ascribed to such terms in the Loan
Agreement, and further agree as follows:
1. Warranty. The Pledgor hereby represents and warrants to the Agent
that (i) except for the security interest created hereby and in the other Loan
Documents, the Pledgor owns the Pledged Interests indicated on Schedule 1 as
being owned by it, which Pledged Interests constitute the percentage of the
issued and outstanding Stock set forth on Schedule 1 attached hereto with
respect to each of the Pledged Companies identified thereon, free and clear of
all Liens; (ii) all of the Pledged Interests are duly authorized, validly
issued, fully paid and nonassessable; (iii) the Pledgor has the unencumbered
right and power to pledge the Pledged Collateral (as defined below); and (iv)
all actions necessary to perfect, establish the first priority of, or otherwise
protect the security interest of the Agent in the Pledged Collateral, and any
proceeds thereof, have been duly taken, except for the taking of possession by
the Agent of any certificates constituting Pledged Collateral hereunder that are
acquired by the Pledgor after the date hereof. Additionally, the Pledgor hereby
represents and warrants to the Agent that this Agreement has been duly executed
and delivered by the Pledgor and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, except as
enforcement may be limited by equitable principles, or by an Insolvency
Proceeding.
2. Security Interest. As security for the full and prompt payment and
performance of the Obligations now or hereafter existing, the Pledgor hereby
unconditionally pledges, transfers, conveys, hypothecates, grants and assigns to
the Agent, for the benefit of the Lender Group, a continuing security interest
in and security title to all of the following property now owned or at any time
hereafter acquired by the Pledgor or in which the Pledgor now has, or may
acquire in the future, any right, title or interest thereto (collectively, the
"Pledged Collateral"):
(a) the Pledged Interests and all substitutions therefor and
replacements thereof, all proceeds and products thereof and all rights
relating thereto, including, without limitation, the certificates
representing any of the Pledged Interests, all warrants, options, share
appreciation rights and other rights, contractual or otherwise, in respect
thereof and all dividends, cash, instruments and other property from time
to time received, receivable or otherwise distributed in respect of or in
addition to, in substitution of, on account of, or in exchange for, any or
all of the Pledged Interests, whether now owned or hereafter acquired by
the Pledgor;
(b) all of the Pledgor's rights, powers and remedies (but not
the Pledgor's obligations) under the limited liability company operating
agreements of the Pledged Companies that are limited liability companies
(collectively, the "Operating Agreements") and under the partnership
agreements of the Pledged Companies that are general or limited
partnerships (collectively, the "Partnership Agreements"), as applicable;
and
(c) to the extent not otherwise included, all proceeds of any
and all of the foregoing.
Without limiting the generality of the foregoing, this Agreement
secures the payment of all amounts that constitute part of the Obligations and
would be owed by the Pledgor to the Agent or the Lenders but for the fact that
they are unenforceable or not allowable due to the existence of an Insolvency
Proceeding involving the Pledgor. The Pledgor has delivered to and deposited
with the Agent all certificates owned by the Pledgor representing the Pledged
Interests to the extent such Pledged Interests are represented by certificates
and undated powers endorsed in blank with respect to such certificates. In
addition, the Pledgor has delivered to the Agent all of the Uniform Commercial
Code financing statements, in suitable form for recording, with respect to all
of the Pledged Collateral that is not represented by certificates that are
necessary to perfect the security interest granted to the Agent under this
Agreement in such Pledged Collateral or the Pledgor has authorized the Agent to
prepare and file such Uniform Commercial Code financing statements. It is the
intention of the parties hereto that record and beneficial ownership of the
Pledged Collateral, including, without limitation, all voting,
consensual and dividend rights, shall remain in the Pledgor until the occurrence
of an Event of Default and until the Agent shall notify the Pledgor of the
Agent's exercise of voting and consensual rights to the Pledged Collateral
pursuant to Section 10 hereof.
3. Operating Agreements and Partnership Agreements. Anything herein
to the contrary notwithstanding, the Pledgor shall, for so long as it shall
remain a member under any Operating Agreement or a partner under any Partnership
Agreement, remain liable under such Operating Agreement or Partnership
Agreement, as the case may be, to observe and perform all the conditions and
obligations to be observed and performed by it thereunder, all in accordance
with and pursuant to the terms and provisions thereof. With regard to Pledged
Collateral for which the applicable Operating Agreement or Partnership Agreement
provides that all limited liability company or partnership interests, as
applicable, issued thereunder shall be certificated, the Pledgor shall not
amend, supplement or otherwise modify (or consent to any such amendment,
supplement or modification of) the terms of such Operating Agreement or such
Partnership Agreement, as the case may be, so as to provide for the issuance of
uncertificated limited liability company or partnership interests, as
applicable, without the prior written consent of the Agent. With regard to
Pledged Collateral for which the applicable Operating Agreement or Partnership
Agreement, as the case may be, does not provide that all limited liability
company or partnership interests, as applicable, issued thereunder shall be
certificated, the Pledgor hereby represents and warrants to the Agent that such
Pledged Collateral (i) is not dealt in or traded on securities exchanges or in
securities markets, (ii) does not constitute investment company securities, and
(iii) is not held by the Pledgor in a securities account. In addition, the
Pledgor further hereby represents and warrants that the articles of
organization, the Operating Agreements or the Partnership Agreements or other
agreements governing any of the uncertificated Pledged Collateral do not provide
that such Pledged Collateral may be certificated or that such Pledged Collateral
are securities governed by Article 8 of the Uniform Commercial Code as in effect
in any relevant jurisdiction.
4. Additional Pledged Interests. In the event that, during the term
of this Agreement:
(a) any stock dividend, stock split, reclassification,
readjustment or other change is declared or made in the capital structure
of any of the Pledged Companies, or any new Stock is issued by any of the
Pledged Companies, all new, substituted, and additional shares, units,
membership interests or other securities issued in respect of any of the
Pledged Interests shall be issued to the Pledgor and shall be promptly
delivered to the Agent, together with a duly executed Pledge Agreement
Supplement in substantially the form of Annex 1 hereto (the "Pledge
Agreement Supplement") identifying such additional Pledged Interests to be
held by the Agent under the terms of this Agreement and with undated powers
endorsed in blank by the Pledgor, and, to the extent such new Stock or
other securities are not represented by certificates, such Uniform
Commercial Code financing statements with respect thereto as shall be
necessary to perfect the security interest of the Agent therein or
authorization given to the Agent to prepare and file such Uniform
Commercial Code financing statements, and in each case, such new,
substituted, and additional shares, units and other securities shall, upon
the issuance thereof, constitute additional Pledged Interests to be held by
the Agent under the terms of this Agreement; and
(b) any subscriptions, warrants or other rights or options shall
be issued in connection with any of the Pledged Interests, all new Stock or
other securities acquired through such subscriptions, warrants, rights or
options shall thereupon constitute Pledged Interests to be held by the
Agent under the terms of this Agreement, and, to the extent such Stock or
other securities are represented by certificates, such certificates shall
be promptly delivered to the Agent, together with undated powers endorsed
in blank by the Pledgor, and, to the extent such new Stock or other
securities are not represented by certificates, such Uniform Commercial
Code financing statements with respect thereto as shall be necessary to
perfect the security interest of the Agent therein shall be promptly
delivered to the Agent or the Pledgor shall authorize the Agent to prepare
and file such Uniform Commercial Code financing statements.
5. Event of Default. Upon the occurrence and during the continuation
of an Event of Default, the Agent may sell or otherwise dispose of any of the
Pledged Interests at one or more public or private sales or make any other
commercially reasonable disposition of the Pledged Interests or any portion
thereof after ten (10) calendar days' notice to the Pledgor and the Agent, on
behalf of the Lender Group, may credit bid and purchase the Pledged Interests or
any portion thereof at any public sale. The proceeds of the public or private
sale or other disposition first shall be applied to the costs of the Agent
incurred in connection with the sale, expressly including, without limitation,
any costs under Section 8 hereof, and then to the Obligations in accordance with
the provisions of the Loan Agreement. In the event the proceeds of such sale or
other disposition of the Pledged Interests are insufficient to satisfy the
Obligations, the Pledgor shall remain liable for any such deficiency.
6. Additional Rights of Secured Party. In addition to its rights and
privileges under this Agreement or any other Loan Document, the Agent shall have
all the rights, powers and privileges of a secured party under the Uniform
Commercial Code as in effect in any applicable jurisdiction. All amounts
realized or collected through the exercise of remedies hereunder shall be
applied as provided in the Loan Agreement.
7. Return of Pledged Interests to the Pledgor. Upon satisfaction of
the conditions to termination of security interests and Liens set forth in
Section 3.5 of the Loan Agreement, this Agreement and the Agent's security
interest and security title hereunder shall terminate, and the Agent shall
return the remaining certificated Pledged Interests and all rights received by
the Agent as a result of its possessory interest in such Pledged Interests to
the Pledgor and shall deliver as promptly as reasonably practicable such
termination statements and other release documents as may be requested by the
Pledgor to evidence the termination of the Agent's security interest in such
Pledged Interests hereunder.
8. Disposition of Pledged Interests by the Agent. None of the Pledged
Interests are registered or qualified under the various federal or state
securities laws of the United States and disposition thereof after an Event of
Default may be restricted to one or more private (instead of public) sales in
view of the lack of such registration. The Pledgor understands that upon such
disposition, the Agent may approach only a restricted number of potential
purchasers and further understands that a sale under such circumstances may
yield a lower price for the Pledged Interests than if the Pledged Interests were
registered and qualified pursuant to federal and state securities laws and sold
on the open market. The Pledgor, therefore, agrees that:
(a) if the Agent shall, pursuant to the terms of this Agreement,
sell or cause the Pledged Interests or any portion thereof to be sold at a
private sale, the Agent shall have the right to rely upon the advice and
opinion of any nationally recognized brokerage or investment firm (but
shall not be obligated to seek such advice and the failure to do so shall
not be considered in determining the commercial reasonableness of such
action) as to the best manner in which to offer the Pledged Interests for
sale and as to the best price reasonably obtainable at the private sale
thereof; and
(b) such reliance shall be conclusive evidence that the Agent
has handled such disposition in a commercially reasonable manner.
9. Pledgor's Obligations Absolute. The obligations of the Pledgor
under this Agreement shall be direct and immediate and not conditional or
contingent upon the pursuit of any remedies against any other Person, nor
against other security or Liens available to the Agent, any member of the Lender
Group, or any of them. The Pledgor hereby waives any right to require that an
action be brought against any other Person or with respect to any security or to
any balance of any deposit account or credit on the books of the Agent in favor
of any other Person prior to the exercise of remedies hereunder, or to require
action hereunder prior to resort by the Agent to any other security or
collateral for the Obligations.
10. Voting Rights.
(a) Upon the occurrence and during the continuation of an Event of
Default, (i) the Agent may, in addition to all rights and remedies available to
the Agent under any other Loan Document, at law, in equity or otherwise,
exercise all voting rights, and all other ownership or consensual rights with
respect to the Pledged Interests owned by the Pledgor, but under no
circumstances is the Agent obligated by the terms of this Agreement to exercise
such rights, and (ii) the Pledgor hereby appoints the Agent, as the Pledgor's
true and lawful attorney-in-fact and IRREVOCABLE PROXY, to vote the Pledged
Interests owned by it in any manner the Agent deems advisable for or against all
matters submitted or that may be submitted to a vote of shareholders, partners
or members, as the case may be. The power-of-attorney granted hereby is coupled
with an interest and shall be irrevocable.
(b) For so long as the Pledgor shall have the right to vote any of
the Pledged Interests owned by it, the Pledgor covenants and agrees that it will
not, without the prior written consent of the Agent, vote or take any consensual
action with respect to such Pledged Interests that would constitute an Event of
Default.
11. Notices. All notices and other communications required or
permitted hereunder shall be in writing, shall be given in the form and manner
and to the addresses set forth in the Loan Agreement.
12. Continuing Security Interest. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall (a) remain in
full force and effect until the Obligations have been paid in full and the Loan
Agreement, the other Loan Documents, and the Commitments of the Lender Group
have been terminated, (b) be binding upon the Pledgor, and
its successors and assigns, including, without limitation, a receiver or a
trustee, and (c) inure to the benefit of the Agent and its successors,
transferees and assigns.
13. Choice of Law; Amendments. This Agreement shall be construed and
enforced and the rights and duties of the parties shall be governed by, in all
respects in accordance with the laws and decisions of the State of Georgia
without reference to the conflicts or choice of law principles thereof. This
Agreement, together with the Loan Documents, constitutes the entire agreement
between the parties with respect to the matters addressed herein and may not be
modified except by a writing executed by the Agent and the Pledgor and delivered
by the Agent to the Pledgor.
14. Severability. If any paragraph or part thereof shall for any
reason be held or adjudged to be invalid, illegal or unenforceable by any court
of competent jurisdiction, such paragraph or part thereof so adjudicated
invalid, illegal or unenforceable shall be deemed separate, distinct and
independent, and the remainder of this Agreement shall remain in full force and
effect and shall not be affected by such holding or adjudication.
15. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
Delivery of a counterpart hereof by facsimile transmission shall be as effective
as delivery of a manually executed counterpart hereof.
16. Agent. Each reference herein to any right granted to, benefit
conferred upon or power exercisable by the "Agent" shall be a reference to the
Agent for the benefit of the Lender Group, and each action taken or right
exercised hereunder shall be deemed to have been so taken or exercised by the
Agent for the benefit of the Lender Group.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the undersigned parties hereto have executed this
Agreement by and through their duly authorized officers, as of the day and year
first above written.
PLEDGOR: WORLD AIRWAYS, INC., a
Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Title: Chief Financial Officer
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AGENT: FOOTHILL CAPITAL CORPORATION, a
California corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
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SCHEDULE 1
PLEDGED COMPANY
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Number of Shares/ Class of Pledged Percentage of Certificate
Name of Pledged Company Membership Units Interests Class Owned No(s).
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World Airways Parts Company, LLC, N/A Membership 100% 1
a Delaware limited liability Interests
company
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IRREVOCABLE STOCK POWER
FOR VALUE RECEIVED, the undersigned, World Airways, Inc., a Delaware
corporation (hereinafter referred to as the "Assignor"), has fully and
irrevocably granted, assigned and transferred and hereby does fully and
irrevocably grant, assign and transfer to ______________________________ and the
successors, transferees, assigns and personal representatives thereof
(hereinafter collectively referred to as the "Assignee") the following property:
100% of the membership Interest of WORLD AIRWAYS PARTS
COMPANY, LLC., a Delaware limited liability company,
represented by certificate number 1.
Assignor hereby irrevocably appoints Assignee to be Assignor's true and
lawful attorney-in-fact, with full power of substitution, and empowers Assignee,
for and in the name and stead of Assignor, to sell, transfer, hypothecate,
liquidate or otherwise dispose of all of or any portion of the above-described
securities, from time to time, and, for that purpose, to make, sign, execute and
deliver any documents or perform any other act necessary for such sale,
transfer, hypothecation, liquidation or other disposition. Assignor acknowledges
that this appointment is coupled with an interest and shall not be revocable by
Assignor's dissolution or any other reason. Assignor hereby ratifies and
approves all acts that Assignee or any substitute therefor shall do by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed and sealed this power
as of this __ day of ________, ____.
World Airways, Inc., a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Title Chief Financial Officer
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WITNESSED:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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ACKNOWLEDGMENT AND AGREEMENT
World Airways Parts Company, LLC, a Delaware limited liability company
(the "Pledged Company") hereby (i) acknowledges receipt of a fully executed copy
of the foregoing Stock Pledge Agreement, dated as of December 12, 2002 (the
"Agreement"; capitalized terms used herein without definition have the meanings
provided therein), made by World Airways, Inc., as Pledgor, in favor of Foothill
Capital Corporation, as Agent; (ii) consents and agrees to the pledge by the
Pledgor of the Pledged Collateral pursuant to the Agreement and to all of the
other terms and provisions of the Agreement; (iii) represents and warrants that
it has no knowledge, prior to giving effect to this acknowledgment, of any lien,
restriction or adverse claim of any kind to which any interests of the Pledgor
or the Agent is subject; (iv) irrevocably waives any breach or default under the
Operating Agreement as a result of the execution, delivery and performance by
the Pledgor and the Agent of the Agreement; (v) advises the Pledgor and the
Agent that a pledge of the Pledged Interests set forth on Schedule 1 to the
Agreement has been registered on the books of the Pledged Company and in the
name of the Agent and agrees to so register any additional interests pledged
pursuant to the Agreement; and (vi) consents and agrees to any transfer of the
Pledged Collateral pursuant to Section 5 of the Agreement.
IN WITNESS WHEREOF, a duly authorized officer of the undersigned has
executed and delivered this Acknowledgment and Consent this 12 day of
December, 2002.
WORLD AIRWAYS PARTS COMPANY, LLC,
a Delaware limited liability company
By: World Airways, Inc., a Delaware
corporation, its sole member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Manager
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