CONSENT AND AMENDMENT NUMBER FIVE TO LOAN AGREEMENT
Execution
Copy
CONSENT
AND AMENDMENT NUMBER FIVE
This
CONSENT AND AMENDMENT NUMBER FIVE TO LOAN AGREEMENT (this “Agreement”),
dated
as of January 31, 2008, among ATLANTIC AVIATION FBO INC., a Delaware corporation
(the “Borrower”),
ATLANTIC
AVIATION FBO HOLDINGS LLC
(formerly known as Macquarie FBO Holdings LLC), a Delaware limited liability
company (the “Pledgor”),
and
the several 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
Pledgor, the Borrower’s parent company, entered into that certain Share Pledge
Agreement dated as of October 16, 2007 (the “Pledge
Agreement”),
by
and between Pledgor and The Bank of New York, in its capacity as collateral
agent for the benefit of the Secured Parties (the “Collateral
Agent”),
pursuant to which Pledgor, among other things, assigned, pledged and granted
to
the Collateral Agent, for the ratable benefit of the Secured Parties, a security
interest in all of its respective right, title and interest in and to all of
the
issued and outstanding capital stock of the Borrower.
C. The
Pledgor has changed its name from “Macquarie FBO Holdings LLC” to “Atlantic
Aviation FBO Holdings LLC” effective as of January 2, 2008, and amended the
financing statement filed in connection with the Pledge Agreement (the
“Financing Statement”) to amend the “debtor’s” name on January 9, 2008, and
provided a copy to the Administrative Agent.
D. The
Borrower and Pledgor have requested that the Required Lenders consent to the
change of name from “Macquarie FBO Holdings LLC” to “Atlantic Aviation FBO
Holdings LLC” and waive any non-compliance with the Loan Documents arising out
of not having amended the Financing Statement simultaneously with the
effectiveness of the name change.
E. The
Borrower has also requested that the Required Lenders amend Exhibit E to the
Loan Agreement, “Form of Financial Ratio Certification” to be in the form
attached hereto as Attachment 1.
F.
The
Lender Parties are willing to provide the requested waivers and agree to the
requested amendment, 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 Exhibit E to the Loan Agreement.
Exhibit
E to the Loan Agreement, “Form of Financial Ratio Certification” is hereby
deleted and replaced in its entirety with the “Form of Financial Ratio
Certification” attached hereto as Attachment 1.
Section
3. Consent.
(a) Each
Required Lender hereby consents to the change of name of Pledgor from “Macquarie
FBO Holdings LLC” to “Atlantic Aviation FBO Holdings LLC” to be effective as of
the date of the name change and waives any non-compliance with any Loan Document
arising from Pledgor’s failure to amend the Financing Statement simultaneously
with the effectiveness of the name change (the “Consent”).
(b) The
Consent set forth herein shall be limited precisely as provided for herein
to
the provisions expressly referred to herein and shall not be deemed to be a
waiver of, amendment of, consent to or modification of any other term or
provision of the Loan Agreement, the Pledge Agreement, or any term or provision
of any other Loan Document.
Section
4. No
Further Consent or Amendment.
Except
to the extent that provisions of the Loan Agreement or its Exhibits or the
Pledge Agreement are amended, waived or supplemented as expressly set forth
in
Sections 2 and 3 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 or the Pledgor under the Pledge Agreement.
Section
5. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK.
Section
6. 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
7. 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.
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Section
8. 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
9. 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.]
-3-
IN
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/
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Name: ▇▇▇▇▇
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Title: CEO
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ATLANTIC
AVIATION FBO HOLDINGS LLC
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By:
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/s/
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Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title: CEO
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CONSENT
AND AMENDMENT NUMBER FIVE TO LOAN AGREEMENT
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Acknowledged
by:
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DEPFA
BANK plc, as Administrative Agent, Term
Loan Lender, Capex Loan Lender, Revolving Loan Lender and Issuing Bank |
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By:
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/s/
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Name: ▇▇▇▇▇
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Title: Director
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By:
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/s/
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Name: ▇▇▇▇
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Title: Managing
Director
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CONSENT
AND AMENDMENT NUMBER FIVE TO LOAN AGREEMENT
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THE
GOVERNOR AND COMPANY
OF
THE BANK OF IRELAND,
as
Term Loan Lender and Capex Loan Lender
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By:
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/s/
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Name: ▇▇▇▇▇▇
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Title: Associate
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By:
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/s/
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Name: ▇▇▇▇▇▇▇
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Title: Manager
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CONSENT
AND AMENDMENT NUMBER FIVE TO LOAN AGREEMENT
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DEKA
BANK
DEUTSCHE
GIROZENTRALE,
as
Term Loan Lender and Capex Loan Lender
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By:
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/s/
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Title: Vice
President
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By:
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/s/
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Name: ▇▇▇▇▇
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Title: Executive
Director
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CONSENT
AND AMENDMENT NUMBER FIVE TO LOAN
AGREEMENT
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WESTLB
AG, NEW YORK BRANCH
as
Term Loan Lender
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By:
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/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
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Title: Director
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By:
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/s/
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Name: ▇▇▇▇
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Title: Associate
Director
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CONSENT
AND AMENDMENT NUMBER FIVE TO LOAN AGREEMENT
ATTACHMENT
1
FORM
OF FINANCIAL RATIO CERTIFICATION
(See
attached)
Att.
1-1
Exhibit
E
to
Loan Agreement
FORM
OF FINANCIAL RATIO CERTIFICATION
[Date]
DEPFA
BANK plc,
as Administrative Agent
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Attention:
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Telephone:
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Facsimile:
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This
Certificate is delivered pursuant to Section 6.1(e) of the Loan Agreement,
dated
as of September 27, 2007 (as amended, restated, supplemented or otherwise
modified from time to time, the “Loan Agreement”),
among
Atlantic Aviation FBO Inc., a Delaware corporation (the “Borrower”),
the
lenders party thereto from time to time (the “Lenders”)
and
DEPFA BANK plc, as administrative agent for the Lenders (in such capacity,
the
“Administrative
Agent”).
All
capitalized terms used but not defined herein shall have the meanings specified
in the Loan Agreement.
I
hereby
certify to the Administrative Agent on behalf of the Borrower as
follows:
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1.
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I
am the duly qualified and acting [President][Chief Financial
Officer][Treasurer] of the Borrower, and I am familiar with the financial
statements and financial affairs of the Borrower. I am authorized
to
execute this Certificate on behalf of the
Borrower.
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2.
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The
following are true and correct computations, to the best of my knowledge,
as of the date hereof, of the following financial ratios and amounts,
in
each case relating to the following Calculation Date: [ ______, __
200_]:
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(a) Backward
Debt Service Coverage Ratio.
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(i)
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Operating
Revenues for the Calculation Period ending on the referenced Calculation
Date:
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$_________
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(ii)
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Aggregate
equity contributions received from the Investor during such Calculation
Period that meet the conditions of clause (b) of the definition
of “Net
Cash Flow”:
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$________
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(iii)
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Operating
Costs paid during such Calculation Period:
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$________
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(iv)
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Net
Cash Flow for such Calculation Period (item
(i) plus
item (ii) minus
item (iii)):
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$________
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Exh.
E-1
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(v)
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Mandatory
Debt Service during such Calculation Period (see detailed calculation
attached hereto):
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$________
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(vi)
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Backward
Debt Service Coverage Ratio (ratio
of item (iv) to item (v)):
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____
: 1
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(b) Modified
Backward Debt Service Coverage Ratio.1
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Modified
Net Cash Flow for such Calculation Period (item (a)(i) minus
item (a)(iii) above):
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$________
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Modified
Backward Debt Service Coverage Ratio (ratio of item (i) to item (a)(v)
above)
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____
: 1
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(c)
Forward Debt Service Coverage Ratio.
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(i)
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Projected
Operating Revenues for the Calculation Period commencing on the
day
immediately following the referenced Calculation Date:
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$________
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(ii)
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Projected
aggregate equity contributions from the Investor during such Calculation
Period that meet the conditions of clause (b) of the definition
of “Net
Cash Flow”:
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$________
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(iii)
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Projected
Operating Costs during such Calculation Period:
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$________
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(iv)
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Projected
Net Cash Flow for such Calculation Period (item (i) plus
item (ii) minus
item (iii)):
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$________
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(v)
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Projected
Mandatory Debt Service during such Calculation Period (see detailed
calculation attached hereto):
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$________
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(vi)
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Forward
Debt Service Coverage Ratio (ratio
of item (iv) to item (v)):
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____
: 1
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1
For
purposes of determining whether the Distribution Condition set forth in
Section
9.6(a)(ii)(A) is met.
Exh.
E-2
(d) Modified
Forward Debt Service Coverage Ratio.2
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(i)
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Modified
Net Cash Flow for such Calculation Period (item (c)(i) minus
item (c)(iii) above):
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$________
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(ii)
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Modified
Forward Debt Service Coverage Ratio (ratio of item (i) to item
(c)(v)
above)
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____
: 1
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(e)
EBITDA3
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(i)
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Consolidated
Net Income after Tax for the Calculation Period ending on the
referenced
Calculation Date:
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$________
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(ii)
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Interest
Expense for such Calculation Period:
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$________
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(iii)
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Depreciation
and amortization for such Calculation Period:
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$________
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(iv)
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Income
taxes for such Calculation Period:
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$________
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(v)
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Costs
allocated to the Borrower and its Subsidiaries by MIC for such
Calculation
Period:
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$________
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(vi)
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Accruals
and payments to employees of the Borrower and its Subsidiaries
under any
employee phantom stock ownership plan during such Calculation
Period:
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$________
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(vii)
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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:
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$________
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(viii)
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Costs
incurred during such Calculation Period in the integration of
acquired FBO
Businesses, to the extent such costs have been funded by equity
contributions:
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$________
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(ix)
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Amounts
paid during such Calculation Period by Supermarine Companies
as management
fees to American Airport Corporation:
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$________
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(x)
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EBITDA
for such Calculation Period:
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$________
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2
For
purposes of determining whether the Distribution Condition set forth in
Section
9.6(a)(ii)(A) is met.
3
Include
items (ii) through (ix) only to the extent deducted in the determination
of Net
Income after tax and only as determined in accordance with
GAAP.
Exh.
E-3
(d)
Leverage Ratio.
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(i)
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Outstanding
Principal owed under the Loan Agreement as of the referenced
Calculation
Date:
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$________
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(ii)
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EBITDA
for the Calculation Period ending on the referenced Calculation
Date:
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$________
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(iii)
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Leverage
Ratio as of such Calculation Date:
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$________
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Exh.
E-4
IN
WITNESS
WHEREOF, the Borrower has caused this Certificate to be executed and delivered
by a duly authorized officer this _____ day of _____________, 20__.
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ATLANTIC
AVIATION FBO INC.
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By:
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Name:
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Title:
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Exh.
E-5