FOURTH CHANGE IN TERMS AGREEMENT
EXHIBIT 4.22
FOURTH CHANGE IN TERMS AGREEMENT
THIS FOURTH CHANGE IN TERMS AGREEMENT (this “Change in Terms”), is made and entered into
effective as of March 28, 2006, by and between AirNet Systems, Inc., an Ohio corporation
(“Borrower”) and The Huntington National Bank, a national banking association, with a banking
office at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, in its capacity as administrative agent
(“Agent”) for and on behalf of the Lenders from time to time party to the Credit Agreement
described below. Each capitalized term used but not otherwise defined herein shall have the meaning
ascribed to it in the Credit Agreement.
BACKGROUND INFORMATION
A. Pursuant to the Amended and Restated Credit Agreement dated as of May 28, 2004 (as
amended by the First Change in Terms, the Second Change in Terms, the Third Change in Terms,
and as the same may be further amended, modified, supplemented, extended, restated or replaced
from time to time, the “Credit Agreement”) among Borrower, the Lenders, and the Agent, the
Lenders agreed to provide certain credit facilities to the Borrower (collectively, the
“Loans”).
B. Borrower and Agent entered into a certain Change in Terms Agreement dated November 12,
2004, pursuant to which certain terms and provisions of the Credit Agreement were modified (the
“First Change in Terms”).
C. Borrower and Agent entered into a certain Second Change in Terms Agreement dated March 24,
2005, pursuant to which certain terms and provisions of the Credit Agreement were further modified
(the “Second Change in Terms”).
D. Borrower and Agent entered into a certain Third Change in Terms Agreement dated November
21, 2005, pursuant to which Agent waived a Default existing under the Credit Agreement as a result
of Borrower’s failure to maintain certain financial covenants (the “Third Change in Terms”).
E. Borrower has requested that Agent further modify the Credit Agreement, and, acting upon the
authority of the Required Lenders, Agent has agreed to do so on certain conditions, including
without limitation, that Borrower enter into this Change in Terms.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, Agent
and Borrower hereby agree as follows:
1. Change in Terms. The Credit Agreement, and, to the extent applicable, the other Loan
Documents, are hereby modified to provide as follows:
(a) Revolving Commitment Amount. The Aggregate Revolving Commitment is
hereby reduced to $25,000,000, and, as a result of the foregoing reduction, (i) the
Revolving Commitment of HNB shall hereafter be $15,625,000, (ii) the Revolving
Commitment of JPMorgan Chase Bank, N.A., successor by merger to Bank One, N.A. (Main
Office Columbus) shall hereafter be $9,375,000, and (iii) the amounts set forth on
the signature pages to the Credit Agreement shall be replaced with the foregoing
amounts.
(b) Revolving Commitment Termination. The Revolving Commitment is hereby
extended for a period of one (1) year, and the term “Facility Termination
Date,” as set forth in Section 1.1 of the Credit Agreement, is hereby revised
and replaced in its entirety by the following:
“Facility Termination Date” means October 15, 2007,
or any earlier date on which the Aggregate Commitment is
reduced to zero or otherwise terminated pursuant to the
terms hereof.”
(c) Capital Expenditures. The aggregate sum of Capital Expenditures
permitted under the Credit Agreement is hereby reduced to $20,000,000, and Section
6.16 of the Credit Agreement is hereby revised and replaced in its entirety by the
following:
“Section 6.16. Capital Expenditures. The Borrower will not,
and will not permit any of its Subsidiaries to, make, or be
committed to make, Capital Expenditures, on a non-cumulative basis
in the aggregate exceeding $30,000,000.00 in fiscal year 2005, or
$20,000,000.00 in each fiscal year thereafter.
Notwithstanding the foregoing provisions of this Section 6.16, the
difference (up to $5,000,000.00) between (i) the maximum aggregate
Capital Expenditures permitted in any fiscal year, and (ii) the
actual aggregate Capital Expenditures made for such fiscal year,
shall be permitted as a carry-over in any subsequent fiscal year and
shall increase the maximum Capital Expenditures permitted for any
such subsequent fiscal year (including any Capital Expenditures
permitted in such subsequent fiscal year attributable to the
purchase of aircraft).”
(d) Borrowing Base. The Borrowing Base advance rate for fixed assets is
hereby reduced to 50% and the definition of “Borrowing Base,” as set forth in
Section 1.1 of the Credit Agreement, is hereby revised and replaced in its entirety
by the following:
“Borrowing Base” means, at any date, that amount which is
equal to the lesser of (a) the Aggregate Revolving Commitment; or
(b) the aggregate of (i) 80% of the Eligible Accounts Receivable of
the Borrower and its Subsidiaries on a consolidated basis, (ii) 50%
of the Eligible Inventory of the Borrower and its Subsidiaries on a
consolidated basis, and (iii) 50% of the Market Value of Eligible
Fixed Assets of the Borrower and its Subsidiaries on a consolidated
basis.”
e. Pricing Schedule. The Pricing Schedule contains a typographical error,
and the parties agree to hereby correct the same by revising and replacing in its
entirety the definition of “Level V Status,” as set forth on the Pricing Schedule,
by the following:
“Level V Status” exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent
Financials, the Leverage Ratio is less than 2.25 to 1.00.”
2. Truth of Representations and Warranties; No Defaults. Borrower hereby represents
and warrants that the following are true and correct as of the date of this Change in Terms:
(a) The representations and warranties of Borrower and the Guarantors contained in the
Loan Documents to which each is a party are true and correct on and as of the date of this
Change in Terms as if made on and as of such date, unless stated to relate to a specific
earlier date;
(b) No event or condition exists which constitutes a breach, Default or Unmatured
Default under the Loan Documents;
(c) All financial information heretofore provided to Agent and/or the Lenders in
connection with the indebtedness made pursuant to the Loan Documents is true, accurate and
complete in all material respects;
(d) Neither this Change in Terms nor any other document, certificate or written
statement furnished to Agent and/or the Lenders in connection with the indebtedness
evidenced and secured by the Loan Documents contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements contained herein
and therein not misleading;
(e) Borrower and the Guarantors have full power and authority (i) to execute, deliver
and perform, or to acknowledge and agree to the terms and provisions of, this Change in
Terms, as applicable, and (ii) to incur the obligations provided for herein, all of which
have been duly authorized by all necessary and proper corporate or limited liability company
action, as applicable;
(f) No consent, waiver or authorization of, or filing with, any person or any
governmental authority is required to be made or obtained by Borrower or the Guarantors in
connection with the borrowings under the Loan Documents, or the execution, delivery,
performance, validity or enforceability of this Change in Terms;
(g) This Change in Terms and the Loan Documents constitute the legal, valid and binding
obligation of Borrower and the Guarantors enforceable against them in accordance with the
terms hereof and thereof, as applicable; and
(h) The execution and delivery by Borrower and the Guarantors of this Change in Terms
and the performance by Borrower and the Guarantors of the Loan Documents to which each is a
party, as modified by this Change in Terms: (i) do not and will not violate any law or
regulation; (ii) do not and will not violate any order, decree or judgment by which Borrower
or the Guarantors, as applicable, are bound; (iii) do not and will not violate or conflict
with, result in a breach of or constitute (with notice, lapse of time, or otherwise) a
default under any material agreement, mortgage, indenture or other contractual obligation to
which Borrower or any of the Guarantors is a party, or by which Borrower’s or any of the
Guarantors’ properties are bound; and (iv) do not and will not result in the creation or
imposition of any lien upon any property or assets of Borrower or any of the Guarantors.
3. Ratification of Loan Documents. This Change in Terms constitutes only a
modification of the Credit Agreement and the other Loan Documents and Borrower hereby acknowledges,
ratifies and confirms all of the provisions thereof, except as herein expressly modified, including
provision for the acceleration of the maturity of the Loans, and for the enforcement by Agent
and/or the Lenders of all remedies any of them may have according to law. In addition, Borrower
acknowledges, ratifies and confirms any and all security interests previously granted in connection
with the Loans as continuing in full force and effect.
4. No Course of Dealing; Waiver. Borrower expressly acknowledges and agrees that the
execution of this Change in Terms shall not constitute a waiver of, and shall not preclude the
exercise of, any right, power or remedy granted to Agent and/or the Lenders in the Loan Documents,
or as provided by law, except to the extent expressly provided herein. No previous modification,
extension or compromise entered into with respect to any indebtedness of Borrower to Agent and/or
the Lenders shall constitute a course of dealing or be inferred or construed as constituting an
express or implied understanding to enter into any future modification, extension or compromise,
whether or not the same was in writing. No past, present or future delay on the part of Agent
and/or any Lender in exercising any right, power or remedy shall operate as a waiver thereof, or
otherwise prejudice Agent’s or any Lender’s rights, powers or remedies.
5. Promise to Pay. Borrower hereby covenants and promises to pay to the order of
Agent, the unpaid principal balance of the Loans, together with interest as provided in the Credit
Agreement and the other Loan Documents, and hereby promises to perform all of the covenants,
conditions, stipulations and agreements as contained in the Loan Documents and in any other
document or instrument executed in connection therewith or referencing the same (as modified by
this Change in Terms).
6. Setoffs, Claims and Defenses. Borrower hereby certifies that, as of the date
hereof, it has no setoffs, counter-claims or other defenses of any nature whatsoever to the payment
of any part of the obligations owed to Agent and/or any Lender as of the date of execution of this
Change in Terms.
7. Governing Law. This Change in Terms shall be interpreted and construed in
accordance with and governed by the laws of the State of Ohio (without respect to conflict of law
principles). Further, the parties hereto intend that this Change in Terms shall be in compliance
with all applicable laws and shall be enforceable in accordance with its terms. If any provision
of this Change in Terms shall be illegal or unenforceable with respect to
the Loan Documents, such provision shall be deemed cancelled to the extent necessary, but the
remaining provisions shall not be affected hereby.
8. Further Assurances. Borrower and the Guarantors further agree to execute and
deliver any and all further documents and to take any and all other steps or actions reasonably
deemed necessary by Agent to effectuate this Change in Terms.
9. Affirmation of Other Obligors. Upon the request of Agent, Borrower shall obtain
the acknowledgment and acceptance by each other party obligated in any way with respect to the
Loans or otherwise in connection with the credit extended pursuant to the Credit Agreement,
including, without limitation, the Guarantors and any other guarantor, co-borrower, pledgor or
other accommodation party or party granting collateral security for the Loans and other obligations
under the Loan Documents and otherwise, that the obligations and agreements of each such party to
the Lenders and/or the Agent under the Loan Documents, as applicable, or otherwise, shall continue
in full force and effect with respect to the indebtedness evidenced and secured by the Loan
Documents, irrespective of any modification made in this Change in Terms, which acknowledgement and
acceptance shall be in a writing executed by each such party and satisfactory to Agent.
10. Acknowledgment by Lenders. This Change in Terms shall only be effective upon the
acknowledgment, consent and acceptance by the Required Lenders, which acknowledgement, consent and
acceptance shall be evidenced by execution of this Change in Terms by Lenders constituting the
Required Lenders.
11. Successors and Assigns. This Change in Terms shall be binding upon the parties
hereto and their respective successors and assigns, and shall inure to the benefit of Agent and its
successors and assigns.
12. Fees, Costs and Expenses. Borrower also agrees to reimburse Agent for all
costs and expenses incurred in the preparation, execution and delivery of this Change in Terms,
including reasonable attorneys’ fees. On this date, Borrower shall pay to Agent, for the ratable
benefit of the Lenders, a loan modification fee in the amount of $31,250, and any failure to so pay
such sum shall render this Change in Terms void and of no force or effect.
13. Titles and Headings. The titles and headings herein are intended to promote
convenience and are not a part of this Change in Terms for purposes of interpreting and applying
the provisions hereof.
14. Counterparts. This Change in Terms may be executed in any number of counterparts,
all of which taken together shall constitute one agreement, and any of the parties hereto may
execute this Change in Terms by signing any such counterpart. This Change in Terms shall be
effective when it has been executed by Borrower, Agent, the Required Lenders and the Guarantors.
15. WAIVER OF JURY TRIAL. BORROWER AND AGENT HEREBY WAIVE TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS CHANGE IN
TERMS OR ANY OF THE LOAN DOCUMENTS OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
16. Confession of Judgment. Borrower hereby irrevocably authorizes any
attorney-at-law, including any attorney-at-law employed or retained by Agent to appear for it in
any action on this Change in Terms or any of the Loan Documents at any time after the same becomes
due as herein or therein provided in any court of record situated in the county where this warrant
was signed (being Franklin County, Ohio), or in the county where Borrower then resides or can be
found, to waive the issuing and service of process, and confess a judgment in favor of the holder
of this Change in Terms and any such Loan Documents against Borrower, for the amount that may then
be due, with interest at the rate(s) provided for herein, together with the costs of suit, and to
waive and release all errors in said proceedings and the right to appeal from the judgment
rendered. Borrower consents to the jurisdiction and venue of such court. Borrower waives any
conflict of interest that any attorney-at-law employed or retained by Agent may have in confessing
judgment hereunder and consents to the payment of a legal fee to any attorney-at-law confessing
judgment hereunder.
IN WITNESS WHEREOF, Borrower and Agent have caused this Change in Terms to be executed
effective as of the day and year first above written.
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | |||
WARNING – BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT
PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS
OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
AGENT:
The Huntington National Bank,
a national banking association, as Agent
The Huntington National Bank,
a national banking association, as Agent
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
[acknowledgement of Lenders contained on next page]
ACKNOWLEDGMENT OF LENDERS
The undersigned Lenders hereby acknowledge, consent to, and accept all of the provisions of
the foregoing Change in Terms.
| The Huntington National Bank, | ||||
| an national banking association | ||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President | ||||
| JPMorgan Chase Bank, N.A., a national banking | ||||
| association and successor by merger to Bank One, N.A. | ||||
| (Main Office Columbus) | ||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Senior Vice President | ||||
[signatures continue on following pages]
ACKNOWLEDGMENT OF GUARANTORS
The undersigned Guarantors hereby acknowledge, accept and agree to each of the provisions of
the foregoing Change in Terms and ratify and confirm that all of the provisions of the Loan
Documents to which each such Guarantor is a party, including, without limitation, the Subsidiary
Guaranty, the Fast Forward Guaranty, the Timexpress Guaranty, as applicable, and the Security
Agreements, and all obligations and liabilities of each such Guarantor in favor of Agent and/or the
Lenders thereunder and otherwise, and all liens, security and other interests granted thereby,
shall continue and remain in full force and effect, irrespective of any provision of the above
Change in Terms, or any other or future modification of the Loan Documents or the terms of the
credit extended, evidenced and secured thereby.
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | |||
WARNING – BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT
PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS
OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
Float Control, Inc., a
Michigan corporation
Michigan corporation
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | |||
WARNING – BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT
PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS
OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
[signatures continue on following pages]
AirNet Management, Inc., an
Ohio corporation
Ohio corporation
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | |||
WARNING – BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT
PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS
OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
Fast Forward Solutions, LLC, an
Ohio limited liability company
Ohio limited liability company
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | |||
WARNING – BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT
PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS
OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
▇▇▇▇▇▇▇▇▇▇.▇▇▇, inc. an
Ohio corporation
Ohio corporation
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | |||
WARNING – BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT
PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS
OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.