AMENDMENT NUMBER SIX TO LOAN AGREEMENT
Exhibit
10.29
AMENDMENT
NUMBER SIX
This AMENDMENT NUMBER SIX TO LOAN
AGREEMENT (this “Amendment”), dated as
of February 25, 2009, among ATLANTIC AVIATION FBO INC., a Delaware corporation
(the “Borrower”) and the
bank or 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
Borrower, the Lender Parties and the Administrative Agent 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 has requested that the Required Lenders agree to amend the Loan
Agreement as described below.
C. The
Lender Parties agree to the requested amendments, subject to and upon the terms
set forth herein.
NOW
THEREFORE, the parties hereto hereby agree as follows:
1. Definitions and Rules of
Interpretation. All capitalized terms used but not defined in this
Amendment 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.
2. Amendments to the Loan
Agreement. The Loan Agreement is hereby amended as follows:
2.1 Section
2.2(a) (“Capex Loan
Commitments”) is hereby amended by inserting the following phrase after
the words “not exceeding $50,000,000 in the aggregate”: “or, with respect to the
Capex Loans available in the period from January 1st, 2009
to December 31, 2011, for any particular calendar quarter of such period, in an
amount which, together with all the Capex Loans made during such period, does
not exceed the amount stated in the column entitled “Cumulative Permitted Capex
Draw” of Schedule
2.2(a) hereof for such quarter”.
2.2 Section
2.3(a) (“Revolving
Loan Commitments”) is hereby amended by replacing the number $20,000,000
with $18,000,000.
2.3 Section
2.9(c) (“Mandatory
Prepayments”) is hereby amended by adding additional clauses (viii) and
(ix) to the end thereof:
“(viii)
Unless otherwise agreed upon by the Borrower and the Administrative Agent acting
at the direction of the Required Lenders, if, on any Calculation Date, the
Leverage Ratio as of such Calculation Date is equal to or greater than 6.0x, all
Excess Cash Flow as of such Calculation Date shall be applied promptly and, in
any event, no later than ten (10) Business Days after such Calculation Date, to
prepay the Loans in accordance with clause (vii)
above.
(ix)
Unless otherwise agreed upon by the Borrower and the Administrative Agent acting
at the direction of the Required Lenders, if, on any Calculation Date, the
Leverage Ratio as of such Calculation Date is below 6.0x but is equal to or
greater than 5.5x , 50% of Excess Cash Flow as of such Calculation Date shall be
applied promptly and, in any event, no later than ten (10) Business Days after
such Calculation Date, to prepay the Loans in accordance with clause (vii)
above.”
2.4 Section
7.9 (“Transaction with
Affiliates”) is hereby amended by adding the following sentence to the
end thereof: “Without limiting the generality of the foregoing, the Borrower
shall not agree to any amendment, modification, extension, renewal or
replacement of the Tax Sharing Agreement, which agreement and payments
thereunder are, for the avoidance of doubt, not prohibited by this Section 7.9
or subject to Section 9.6, without a prior written consent of the Administrative
Agent, which shall not be unreasonably withheld or delayed, except for any such
amendment, modification, extension, renewal or replacement which could not be
reasonably expected to have (a) a material adverse affect on the Borrower or (b)
an adverse impact on Borrower that is disproportionate to its impact
on other members of the Borrower's US consolidated tax group.”
2.5 Section
7.13 (“Management
Fees; MIC Cost Allocations”) is hereby amended by adding the following:
“; it being
understood that this
Section
7.13 shall not apply to
any payments by the Borrower under the Tax Sharing Agreement” to the end
thereof.
2.6 Section
9.6 (“Distributions”) is
hereby amended by deleting clause (a)(ii)(E) of such Section and replacing it
with “[Reserved]”.
2.7 Definition
of “EBITDA” in Appendix A is amended in its entirety to read as
follows:
““EBITDA” means, for
any period, (i) the consolidated Net Income after tax of the Borrower and its
Subsidiaries for such period, (ii) plus the sum of the
following items of the Borrower and its Subsidiaries determined on a
consolidated basis: (a) Interest Expense for such period,
(b) depreciation and amortization for such period, (c) income tax
expense for such period, (d) expenses allocated to the Borrower by MIC,
(e) accruals and payments to employees of the Borrower and its Subsidiaries
under any employee phantom stock ownership plan, (f) all non-recurring
costs, fees and expenses relating to acquisitions or dispositions of FBO
businesses or refinancings of Indebtedness completed by the Borrower or its
Subsidiaries, (g) costs incurred in the integration of acquired FBO
Businesses, but only to the extent such costs have been funded by equity
contributions, (h) amounts paid by Supermarine Companies as management fees to
American Airport Corporation, (i) all other extraordinary or non-recurring
non-cash expenses during such period (including losses resulting from write-off
of goodwill or other assets in accordance with Statement of Financial Accounting
Standards No-s 142 and 144), and (k) any non cash losses due to change in market
value of the Hedging Agreements during such period, in each case to the extent
deducted in the determination of Net Income after tax and in each case as
determined in accordance with GAAP; and (iii) minus the sum of the
following items of the Borrower and its Subsidiaries determined on a
consolidated basis: (x) all extraordinary or non-recurring non-cash income
during such period, and (y) any non cash income due to change in market
value of the Hedging Agreements during such period, in each case to the extent
added in the determination of Net Income after tax and in each case as
determined in accordance with GAAP; provided that such
items relating to the Borrower or its Subsidiaries on a consolidated basis for
the twelve-month period preceding the date of determination shall be included or
excluded, as applicable, in such calculation without regard as to whether the
Borrower or its Subsidiaries, as applicable, were Loan Parties or Subsidiaries
during such period.”
2
2.8 Definition
of “Lock-Up Event” in Appendix A is deleted in its entirety and replaced with
the following:
““Lock-up Event” means
the failure to satisfy the condition set forth in Section 9.6(a)(ii)(A) as of
any Calculation Date.”
2.9 Definition
of “Maximum Leverage Ratio” in Appendix A is amended by replacing the table used
in such definition with the following:
|
Year
|
Maximum
Leverage Ratio
|
|
2007:
|
8.0x
|
|
2008:
|
7.75x
|
|
2009:
|
8.25x
|
|
2010:
|
8.0x
|
|
2011:
|
7.5x
|
|
2012:
|
6.75x
|
|
2013:
|
6.0x
|
|
2014:
|
5.0x
|
2.10 Definition
of “MIC Cost Reimbursement Payment” is hereby amended by adding “, other than any payments under the
Tax Sharing Agreement” to the end thereof.
2.11 Definition
of “Operating Costs” is hereby amended by adding the words “, any payments pursuant to the Tax
Sharing Agreement” after “any Taxes”.
2.12 New
definition is added to Appendix A in the appropriate alphabetical order, to read
as follows:
““Tax Sharing
Agreement” means (i) the Income Tax Sharing Agreement, dated as of
January 1, 2007, among Macquarie Infrastructure Company LLC and its subsidiaries
identified therein, and (ii) any replacement or extension thereof.”
2.13 The
table attached hereto as Annex I is hereby added to the Loan Agreement as new
Schedule 2.2(a).
2.14 Schedule
2.7(b) is hereby deleted and replaced in its entirety with the table attached
hereto as Annex II.
3
(a) Exhibit
E (“Form of Financial
Ratio Certification”) is hereby amended by adding the following new
clauses to section 2(e) thereof, to follow the existing clause (ix), and
renumbering of the subsequent clause(s):
|
(x)
|
all
other extraordinary or non-recurring non-cash expenses or income
during such period (including losses resulting from write-off of goodwill
or other assets in accordance with Statement of Financial Accounting
Standards No-s 142 and 144):
|
$_________________
|
|
(xi)
|
any
non cash losses or income due to change in market value of the
Hedging Agreements during such period:
|
$_________________
|
3. Effectiveness. This
Amendment shall become effective upon the execution and delivery thereof by the
Borrower, the Administrative Agent and the Lender Parties and satisfaction of
the following conditions precedent (the “Effective
Date”):
3.1 The
representations and warranties of the Borrower in Section 5 of this Amendment
shall be true and correct as of the Effective Date, and the Administrative Agent
shall have received a certificate from a Responsible Officer of the Borrower
confirming the same.
3.2 The
Borrower shall have paid to the Administrative Agent an amendment fee in the
amount of $100,000.
3.3 MIC
shall have contributed, directly or indirectly, to the Borrower $50,000,000.00
by depositing such amount directly into the Special Reserve
Account.
3.4 The
Borrower shall have used the funds in the Special Reserve Account (including the
funds deposited by MIC pursuant to Section 3.3 hereof) to make an optional
prepayment of the Term Loans in accordance with Section 2.9(b) of the Loan
Agreement, together with (a) any Hedging Termination Obligations payable under
the Hedging Agreements as a result of reduction of notional amounts under any
such Hedging Agreements due to such optional prepayment and (b) any funding
losses resulting from such optional prepayment, pursuant to Section 3.5 of the
Loan Agreement.
3.5 The
Borrower shall have paid the reasonable fees and disbursements of the Lenders’
counsel incurred in connection with this Amendment.
3.6 The
Borrower shall have deliver to the Administrative Agent and the Lenders an
opinion of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Borrower, in form
and scope reasonably satisfactory to the Administrative Agent, regarding the due
authorization, execution and delivery of the Amendment, its legal and valid
nature, binding effect and enforceability.
4. Waiver. In connection
with the optional prepayment of the Term Loans described in Section 3.4 above,
the Administrative Agent and the Lender Parties hereby waive the requirement of
Section 2.9(b) of the Loan Agreement for (a) five (5) Business Days notice prior
to any proposed date of optional prepayment and (b) any optional prepayment of
Loans to occur on an Interest Payment Date.
4
5. Borrower’s Representations
and Warranties. The Borrower hereby represents and warrants that, as
of the date of execution and delivery of this Amendment and as of the Effective
Date:
5.1 The
Borrower has full power and authority to enter into and perform its obligations
under this Amendment, and has taken all necessary action to authorize its
execution and delivery of this Amendment and the performance of its obligations
under this Amendment.
5.2 This
Amendment has been duly executed and delivered by the Borrower and constitutes
the legal, valid and binding obligation of the Borrower, enforceable against it
in accordance with the terms hereof and thereof, subject to applicable
bankruptcy, insolvency and other similar laws affecting creditors’ rights
generally and subject to general equitable principles.
5.3 All
governmental authorizations and actions necessary in connection with the
execution and delivery by it of this Amendment and the performance of its
obligations hereunder have been obtained or performed and remain valid and in
full force and effect.
5.4 Execution,
delivery and performance of this Amendment by the Borrower (i) do not and will
not contravene any provisions of the Borrower’s organizational documents, or any
law, rule, regulation, order, judgment or decree applicable to or binding on the
Borrower or any of its properties, (ii) do not and will not contravene, or
result in any breach of or constitute any default under, any agreement or
instrument to which the Borrower is a party or by which the Borrower or any of
its properties may be bound or affected, and (iii) do not and will not require
the consent of any Person under any existing law or agreement which has not
already been obtained.
5.5 No
Default or Event of Default has occurred or is continuing.
5.6 The
Borrower has delivered to the Administrative Agent a true and complete copy of
the Tax Sharing Agreement.
6. No Further Consent or
Amendment. Except to the extent that provisions of the Loan Agreement are
amended, waived or supplemented as expressly set forth in Section 2 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.
7. Governing Law. THIS
AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK.
8. Miscellaneous.
5
8.1 If
any provision of this Amendment is held to be illegal, invalid or unenforceable,
the legality, validity and enforceability of the remaining provisions of this
Amendment 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.
8.2 The
headings in this Amendment have been included herein for convenience of
reference only, are not part of this Amendment, and shall not be taken into
consideration in interpreting this Amendment.
8.3 This
Amendment 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.
8.4 This
Amendment 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
Amendment signed by all the parties shall be maintained by the Borrower and the
Administrative Agent.
[Signature
pages follow.]
6
IN WITNESS WHEREOF, the
parties hereto have caused this Amendment 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.
|
|
|
By:
___/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
_________________
|
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Name: ▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Secretary
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Amendment
Number Six to Loan Agreement
|
Acknowledged
by:
DEPFA
BANK plc, as Administrative Agent
|
|
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By:____/s/ ▇▇▇ ▇▇▇▇▇▇▇
______________________
|
|
|
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Name: ▇▇▇
▇▇▇▇▇▇▇
Title: Managing
Director
|
|
By:___/s/ Borjan Panovski
___________________
|
|
|
|
Name: Borjan
Panovski
Title: Director
|
|
DEPFA
BANK plc, as Term Loan Lender, Capex Loan Lender, Revolving
Loan Lender and Issuing Bank
|
|
|
By:____/s/ ▇▇▇ ▇▇▇▇▇▇▇
______________________
|
|
|
Name: ▇▇▇
▇▇▇▇▇▇▇
Title: Managing
Director
|
|
|
By:____/s/ Borjan Panovski
___________________
|
|
|
Name: Borjan
Panovski
Title: Director
|
|
Amendment
Number Six to Loan Agreement
|
ALLIED
IRISH BANKS plc
as
Term Loan Lender and Capex Loan Lender
|
|
|
By:
___/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
__________________
|
|
|
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Associate Director
|
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|
By:
___/s/ ▇▇▇▇ ▇▇▇▇▇
_______________________
|
|
|
Name: ▇▇▇▇
▇▇▇▇▇
Title: Senior
Analyst
|
|
Amendment
Number Six to Loan Agreement
|
DEKABANK
DEUTSCHE GIROZENTRALE FINANZGRUPPE
as
Term Loan Lender and Capex Loan Lender
|
|
|
By:
___/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
_________________
|
|
|
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
Vice President
|
|
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By:
___/s/ ▇▇▇▇▇ ▇▇▇▇
_______________________
|
|
|
Name: ▇▇▇▇▇
▇▇▇▇
Title: Executive
Director
|
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Amendment
Number Six to Loan Agreement
ANNEX
1
|
Period
|
Scheduled
Capex Draws
US$000s
|
Cumulative
Permitted Capex Draw
US$000s
|
|
Q1
2009
|
1,878.00
|
2,000.0
|
|
Q2
2009
|
1,537.00
|
3,600.0
|
|
Q3
2009
|
2,204.00
|
5,800.0
|
|
Q4
2009
|
—
|
5,800.0
|
|
Q1
2010
|
425.25
|
6,250.0
|
|
Q2
2010
|
425.25
|
6,700.0
|
|
Q3
2010
|
425.25
|
7,100.0
|
|
Q4
2010
|
425.25
|
7,500.0
|
|
Q1
2011
|
824.50
|
8,350.0
|
|
Q2
2011
|
824.50
|
9,200.0
|
|
Q3
2011
|
615.50
|
9,800.0
|
|
Q4
2011
|
615.50
|
10,200.0
|
|
Q1
2012 and thereafter
|
0.00
|
10,200.0
|
ANNEX
II
|
Location
|
Project
|
Estimated
Project Cost
US$000s
|
|
Atlanta
Peachtree
|
Terminal
& hangar upgrade
|
3,385.5
|
|
Teterboro
|
Ramp
extension & dirt removal
|
1,286.0
|
|
Nashville
|
Ramp
repair & terminal upgrade
|
897.0
|
|
Charleston
|
Lease
renewal
|
1,550.0
|
|
East
34th
|
Terminal
construction
|
1,231.0
|
|
FRG
Fuel Farm
|
New
fuel farm
|
1,009.0
|
|
El
Paso
|
New
fuel farm
|
800.0
|
|
Jacksonville
|
Facility
Update
|
41.5
|
|
Oklahoma
City1
|
Green-field
FBO
|
—
|
|
Las
Vegas1
|
Hangar
& ramp construction
|
—
|
|
Total
|
10,200.0
|
1 The Oklahoma City and Las Vegas
projects were approved by the Required Lenders on July 24, 2008 at an estimated
cost of $8 million ($5M Oklahoma City and $3M for Las Vegas). Should the
Borrower choose to proceed with these projects, the funding will be provided by
an equity contribution.