UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): September 14, 2011
GLOBAL AVIATION HOLDINGS INC.
(Exact name of registrant as specified in charter)
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Delaware |
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000-52605 |
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20-4222196 |
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(State of incorporation) |
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(Commission File Number) |
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(IRS Employer Identification No.) |
101 World Drive
Peachtree City, Georgia 30269
(Address of principal executive offices / Zip Code)
(770) 632-8000
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act.
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act.
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
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Item 1.01 |
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Entry into a Material Definitive Agreement. |
On September 14, 2011, Global Aviation Holdings Inc. (“the Company”) entered into the Third Supplemental Indenture related to the 14% Senior Secured First Lien Notes due 2013 (the “First Lien Notes”) and a Third Amendment and Waiver related to the Second-Lien Term Loan Agreement, dated as of September 29, 2009 due 2014 (the “Second Lien Loan”) as described below.
In connection with the amendment on the First Lien Notes, the Company made its interest payment within the grace period provided for in the Indenture.
The Third Supplemental Indenture and Third Amendment and Waiver waive the minimum consolidated net cash flow covenant for the quarters ending September 30, 2011 and December 31, 2011. In addition, the Third Supplemental Indenture and the Third Amendment and Waiver each provide that the Company obtain the consent of the majority of the holders of the First Lien Notes and the consent of the Second Lien Loan lender to take certain actions during the waiver period, including payment or settlement of outstanding material litigation.
No consent fee was paid to the First Lien Note holders for the Third Supplemental Indenture. The Third Supplemental Indenture also requires the Company to offer (i) within ten days of the Third Supplemental Indenture, and (ii) no later than December 31, 2011, to repurchase up to $3.0 million principal amount of First Lien Notes (an aggregate of $6.0 million for both such offers) at par plus accrued interest. Assuming these offers are fully subscribed, this principal reduction would save the Company approximately $0.8 million of interest per annum through the remaining term of the First Lien Notes.
The Third Amendment and Waiver also provides that through April 2, 2012, all interest payments due under the Second Lien Loan on September 29, 2011 and March 31, 2012 shall be paid in kind by capitalizing such interest and adding it to the aggregate principal amount of the loan outstanding. Paying interest in kind will reduce cash interest costs by approximately $9.8 million through March 31, 2012. In addition, the Third Amendment and Waiver provides that the Company pay an amendment fee of $6.0 million to the lender upon maturity or any earlier acceleration of the obligations under the Second-Lien Term Loan Credit Agreement. Pursuant to an agreement in connection with the Second Lien Loan, Jason New serves on the Company’s Board of Directors as the designee of affiliates of the lender.
As previously disclosed, the Company’s current business plan includes reducing annual aircraft lease expense by restructuring above-market leases. The negotiated aircraft lease expense savings are a key component to the Company meeting its financial plan in 2012 and 2013 as well as maintaining a competitive cost structure. Consistent with this plan, the Third Supplemental Indenture and Third Amendment and Waiver each requires the Company to demonstrate, no later than October 15, 2011, to the reasonable satisfaction of the holders of a majority in principal amount of the First Lien Notes outstanding, and to the reasonable satisfaction of the lender under the Second Lien Loan, that it has reduced annual aircraft lease expense by a minimum of $18 million in 2012 and 2013. The Company believes that it has received lease modification proposals from its aircraft lessors which in the aggregate would achieve the required lease expense savings. Since such proposals are subject to the completion of definitive documentation,
no assurance can be given that the required lease expense reduction will be achieved or demonstrated to the satisfaction of the Lenders.
This description of the Third Supplemental Indenture and the Third Amendment and Waiver is qualified in its entirety in all respects by reference to the Third Supplemental Indenture and Third Amendment and Waiver, a copy of which is attached hereto as Exhibits 4.1 and 10.1, respectively, and incorporated herein by reference.
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Item 2.03 |
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Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The disclosures set forth under “Third Amendment and Waiver to Second-Lien Term Loan Credit Agreement” in Item 1.01 of this Current Report on Form 8-K are hereby incorporated by reference into this Item 2.03.
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Item 3.03 |
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Material Modification to Rights of Security Holders. |
The disclosures set forth in Item 1.01 of this Current Report on Form 8-K are hereby incorporated by reference into this Item 3.03.
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Item 8.01 |
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Other Events. |
On September 14, 2011 and within the grace period provided by the Indenture, the Issuers made the interest payment on the First Lien Notes scheduled for August 15, 2011.
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Item 9.01 |
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Financial Statements and Exhibits. |
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Exhibit 4.1 |
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Third Supplemental Indenture by and among the Company, North American Airlines, Inc. and World Airways, Inc. and Wells Fargo Bank, National Association, as trustee and as collateral agent |
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Exhibit 10.1 |
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Third Amendment and Waiver to Second-Lien Term Loan Credit Agreement by and among the Company, North American Airlines, Inc., World Airways, Inc., the Guarantors named therein and the Lenders named therein and Wells Fargo Bank, National Association, as administrative agent and collateral agent |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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GLOBAL AVIATION HOLDINGS INC. | |
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(Registrant) | |
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Dated: September 15, 2011 |
By: |
/s/ William A. Garrett |
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William A. Garrett |
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Executive Vice President and Chief Financial Officer |
Exhibit 4.1
EXECUTION VERSION
THIS THIRD SUPPLEMENTAL INDENTURE, dated as of September 14, 2011, (this “Third Supplemental Indenture”), is entered into by and among GLOBAL AVIATION HOLDINGS INC., NORTH AMERICAN AIRLINES, INC. AND WORLD AIRWAYS, INC. (collectively the “Issuers”) and WELLS FARGO BANK, NATIONAL ASSOCIATION, as trustee and as collateral agent (the “Trustee”).
WHEREAS, the Issuers and the Trustee are parties to that certain Indenture dated as of August 13, 2009, as amended by that certain First Supplemental Indenture, dated as of September 28, 2009, and that certain Second Supplemental Indenture, dated as of March 29, 2011, governing the issuance of the Issuers’ 14% Senior Secured First Lien Notes due 2013 (as amended, restated, supplemented or otherwise modified from time to time, the “Indenture”);
WHEREAS, Section 9.02 of the Indenture provides that the Issuers and the Trustee, to the extent authorized thereby, may enter into a supplemental indenture for the purpose of waiving, supplementing or amending certain of the provisions of the Indenture with the consent of the holders of not less than a majority in principal amount of the Notes then outstanding;
WHEREAS, the Issuers intend by this Third Supplemental Indenture to waive certain provisions as set forth below and amend certain provisions contained in Articles 3 and 4 of the Indenture (collectively, the “Waivers and Amendments”);
WHEREAS, the Issuers hereby certify to the Trustee that the Holders of not less than a majority in aggregate principal amount of the Notes outstanding have approved the Waivers and Amendments and consented to the execution and delivery of the Third Supplemental Indenture with respect to the Waivers and Amendments, and all other actions required to be taken under the Indenture with respect to this Third Supplemental Indenture have been taken.
NOW, THEREFORE, in consideration of the premises set forth above, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE ONE
Definitions
SECTION 1. Definitions.
Capitalized terms used in this Third Supplemental Indenture and not otherwise defined herein shall have the meanings ascribed to them in the Indenture.
ARTICLE TWO
Waivers
Compliance with Section 4.19 of the Indenture which requires that Parent’s Consolidated Cash Flow for all Test Periods after the financial quarter of Parent ending June 30, 2010 exceed $50,000,000 is hereby waived solely with respect to the fiscal quarters of Parent ending September 30, 2011 and December 31, 2011.
ARTICLE 3
Amendments
SECTION 3.1. Section 3.09, Offers to Repurchase by Application of Excess Proceeds, Semi-Annual Offer Amount or ATA Excess Proceeds, is hereby amended by inserting the phrase “Special Offer Amount” in the title immediately preceding the word “or” and deleting Section 3.09(a) in its entirety and inserting in lieu thereof the following:
“(a) In the event that, pursuant to Sections 4.10, 4.11, 4.24 or 4.30 hereof, the Issuers shall be required to commence an Asset Sale Offer, a Semi-Annual Offer, an ATA Distribution Offer or a Special Offer, respectively (each, a “Repurchase Offer”), they shall follow the procedures specified below.”
SECTION 3.2. Section 3.09, Offers to Repurchase by Application of Excess Proceeds, Semi-Annual Offer Amount or ATA Excess Proceeds, is hereby amended by deleting Section 3.09(d)(i) in its entirety and inserting in lieu thereof the following:
“(d)(i) that the Repurchase Offer is being made pursuant to this Section 3.09 and Section 4.10, 4.11, 4.24 or 4.30 hereof, as applicable, and the length of time the Repurchase Offer shall remain open;”
SECTION 3.3. Section 3.09, Offers to Repurchase by Application of Excess Proceeds, Semi-Annual Offer Amount or ATA Excess Proceeds, is hereby amended by deleting the last sentence of Section 3.09 in its entirety and inserting in lieu thereof the following:
“Other than as specifically provided in this Section 3.09, and Sections 4.10, 4.11, 4.24 and 4.30 hereof, any purchase pursuant to this Section 3.09 shall be made pursuant to the applicable provisions of Sections 3.01 through 3.06 hereof.”
SECTION 3.4. Section 4.24, ATA Distribution Offer, is hereby amended by deleting Section 4.24(a) in its entirety and inserting in lieu thereof the following:
“(a) If Parent or any of its Subsidiaries receives any ATA Assets, the net cash proceeds of such ATA Assets shall be deemed to constitute “ATA Excess Proceeds.””
SECTION 3.5. Article 4, Covenants, is hereby amended by inserting a new Section 4.29 and a new Section 4.30 to read as follows:
“Section 4.29 Additional Covenants.
(a) During the period from September 14, 2011 through March 31, 2012, without the consent of the holders of a majority in principal amount of the Notes outstanding, Issuers shall not directly or indirectly, or direct any of their Subsidiaries to, make any payment (other than their own fees and expenses) in respect of, any material litigation pending against any of the Issuers.
(b) During the period from September 14, 2011 through March 31, 2012, Parent shall not pay, nor cause any Subsidiary to pay, any amount in respect of any Permitted Second Lien Refinance Indebtedness, provided however, that Parent is
permitted to make payment of accrued interest on Permitted Second Lien Refinance Indebtedness by capitalizing such interest and adding it to the aggregate principal amount of Permitted Second Lien Refinance Indebtedness and to make payment of fees and expenses of counsel and the administrative agent and expenses of the lenders.
(c) During the period from September 14, 2011 through March 31, 2012, without the consent of the holders of a majority in principal amount of the Notes outstanding, Issuers shall not directly or indirectly, or direct any of their Subsidiaries to, settle, compromise, modify, consent or otherwise resolve or terminate any material litigation with respect to which the Issuers are to receive any material financial benefits.
(d) No later than October 15, 2011, Parent shall demonstrate to the reasonable satisfaction of the holders of a majority in principal amount of Notes outstanding that it has achieved a reduction (not including any reduction by virtue of any aircraft returned to the relevant lessor) resulting in annual aircraft lease expense by restructuring above-market leases to rates resulting in aggregate annualized cost reductions of at least $18 million for each of calendar years 2012 and 2013 compared to current costs for such leases.
(e) No later than March 31, 2012, Issuers shall demonstrate to the reasonable satisfaction of the holders of a majority in principal amount of the Notes outstanding that Issuers expect to be in compliance with Section 4.19 of the Indenture for the reporting period ending March 31, 2012.
(f) During the period from September 14, 2011 through March 31, 2012, Issuers shall not enter into any waiver or amendment with respect to the Second Lien Credit Agreement or the Second Priority Claims other than as provided in Article Four (b) hereof, without the prior written consent of the holders of a majority in principal amount of Notes outstanding, which consent shall not be unreasonably withheld or delayed.
Section 4.30 Special Offers.
(a) No later than each of (i) ten (10) days following the date of the Third Supplemental Indenture and (ii) December 31, 2011, the Issuers shall make two independent offers to purchase (each a “Special Offer”) $3.0 million principal amount (the “Special Offer Amount”) of Notes, aggregate $6.0 million principal amount of Notes for both Special Offers, at a purchase price in cash equal to 100% of their principal amount, plus accrued and unpaid interest, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture.
(b) If the aggregate principal amount of Notes tendered pursuant to each Special Offer exceeds the applicable Special Offer Amount, the Trustee shall select the Notes to be purchased on a pro rata basis.
(c) The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant
to each Special Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 hereof or this Section 4.30, the Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached their obligations under Section 3.09 hereof or this Section 4.30 by virtue thereof.”
SECTION 3.7. Article 6, Events of Default, is hereby amended as follows:
(a) Section 6.01(a)(iv) is amended by deleting the word “or” after subsection 4.25, inserting a comma before 4.26 and inserting the words “or 4.29(d)” immediately after 4.26; and
(b) Section 6.01(a) is further amended to remove the word “or” after subsection (x), inserting a semicolon and the word “or” after subsection (xi) and inserting a new Section 6.01 (xii) to read as follows:
(xii) default by any Issuer in the observance or performance of any covenant contained in Sections 4.29(a), (b), (c), (e) and (f) and 4.30 of Article 4.
ARTICLE FOUR
Payment of Interest; Second Lien Waiver
It shall be a condition precedent to the effectiveness of this Third Supplemental Indenture that each of the following shall have been satisfied:
(a) Parent shall have paid on or prior to the date of execution of this Third Supplemental Indenture (i) all interest payable as of August 15, 2011, plus all interest payable on overdue interest as provided in Section 4.01 of the Indenture and (ii) the fees and expenses of counsel to the holders of a majority in principal amount of the Notes currently outstanding.
(b) The Issuers shall have entered into a waiver and amendment to the documentation evidencing the Permitted Second Lien Refinance Indebtedness, in the form of Exhibit A attached hereto.
ARTICLE FIVE
Miscellaneous Provisions
SECTION 5.1 Ratification of Original Indenture. This Third Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Indenture, and as supplemented and modified hereby, the indenture is in all respects ratified and confirmed, and the Indenture and this Third Supplemental Indenture shall be read, taken and construed as one and the same instrument. Notwithstanding anything herein to the contrary, to the extent that any provision of this Third Supplemental Indenture is inconsistent with any provision of the Indenture, the terms of this Third Supplemental Indenture shall govern and apply to the Notes. To the extent that any provision of this Third Supplemental Indenture is inconsistent with any provision of the Intercreditor Agreement, the terms of this Third Supplemental Indenture shall control.
SECTION 5.2 GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS THIRD SUPPLEMENTAL INDENTURE, WITHOUT GIVING EFFECT TO THE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 5.3 Counterpart Originals. The parties may sign any number of copies or counterparts of this Third Supplemental Indenture. Each signed copy or counterpart will be an original, but all of them together represent the same agreement. The exchange of copies of this Third Supplemental Indenture and of signature pages by facsimile, PDF or other electronic transmission shall constitute effective execution and delivery of this Third Supplemental Indenture as to the parties hereto and may be used in lieu of the original Third Supplemental indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
SECTION 5.4 Successors. All agreements of the Issuers in this Third Supplemental Indenture will bind their respective successors. All agreements of the Trustee in this Third Supplemental Indenture will bind its respective successors.
SECTION 5.5 Headings. The headings of the Articles and Sections of this Third Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Third Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 5.6 Severability. In case any provision in this Third Supplemental Indenture is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
SECTION 5.7 Confidentiality. In the event the Issuers shall seek the consent or present evidence of compliance in connection with the provisions of Section 4.29(c), (d) and e) of the Indenture, the Trustee and each holder of a Note, or an authorized representative thereof, receiving such information shall execute and deliver to the Issuers an appropriate confidentiality agreement regarding such information. The refusal or failure by a holder of any of the Notes, or an authorized representative thereof, outstanding to execute a reasonable confidentiality agreement on a timely basis for the purpose of obtaining the confidential information to be disclosed, after a reasonable opportunity to cure such refusal or failure, shall be deemed consent by such holder to, or compliance by the Issuers with, as the case may be, the applicable provisions of Section 4.29(c), (d), (e) or (f).
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed and delivered, all as of the date first written above.
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GLOBAL AVIATION HOLDINGS INC. | |
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By: |
/s/ Brian S. Gillman |
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Name: |
Brian S. Gillman |
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Title: |
Sr. Vice President, General Counsel & Secretary |
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NORTH AMERICAN AIRLINES, INC. | |
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By: |
/s/ Brian S. Gillman |
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Name: |
Brian S. Gillman |
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Title: |
Sr. Vice President, General Counsel & Secretary |
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WORLD AIRWAYS, INC. | |
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By: |
/s/ Brian S. Gillman |
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Name: |
Brian S. Gillman |
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Title: |
Sr. Vice President, General Counsel & Secretary |
[Issuers’ Signature Page to the Third Supplemental Indenture]
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WELLS FARGO BANK, NATIONAL ASSOCIATION, | |
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As Trustee and Collateral Agent | |
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By: |
/s/ Stefan Victory |
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Name: |
Stefan Victory |
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Title: |
Vice President |
[Trustee’s Signature Page to the Third Supplemental Indenture]
By its signature below, each Guarantor under the Indenture hereby acknowledges this Third Supplemental Indenture and joins in and agrees to be bound by the terms and conditions hereof and the transactions contemplated hereby. Each Guarantor hereby further (i) affirms and confirms its guarantees, indemnification obligations and other commitments and obligations under the Indenture, as heretofore supplemented and amended, and (ii) agrees that Article 10 of the Indenture and all guarantees and other commitments and obligations shall continue to be in full force and effect following the effectiveness of the Third Supplemental Indenture.
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GUARANTORS: |
NEW ATA INVESTMENT INC. NEW ATA ACQUISITION INC. WORLD AIR HOLDINGS, INC. WORLD AIRWAYS PARTS COMPANY, LLC GLOBAL AVIATION VENTURES SPV LLC GLOBAL SHARED SERVICES, INC. | |
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By: |
/s/ Brian S. Gillman |
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Name: |
Brian S. Gillman |
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Title: |
Sr. Vice President, General Counsel & Secretary |
(Guarantors’ Signature Page to Third Supplemental Indenture)
EXHIBIT A
Form of Third Amendment and Waiver to
Second-Lien Term Loan Credit Agreement
Exhibit 10.1
EXECUTION VERSION
THIRD AMENDMENT AND WAIVER
TO
SECOND-LIEN TERM LOAN
CREDIT AGREEMENT
THIS THIRD AMENDMENT AND WAIVER TO SECOND-LIEN TERM LOAN CREDIT AGREEMENT (the “Third Amendment”) is entered into effective as of September 14, 2011, by and among Global Aviation Holdings Inc., a Delaware corporation (“Parent”), North American Airlines, Inc., a Delaware corporation (“NAA”), and World Airways, Inc., a Delaware corporation (“WAI” and, together with the Parent and NAA, the “Borrowers” and each a “Borrower”), the Guarantors (“Guarantors”) and the Lenders (“Lenders”) party to the Credit Agreement described below and Wells Fargo Bank, National Association (the “Agent”), as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) and as collateral agent for the Secured Parties (in such capacity, the “Collateral Agent”).
WITNESSETH:
WHEREAS, Borrowers, Guarantors, Lenders, Administrative Agent and Collateral Agent heretofore entered into that certain Second-Lien Term Loan Credit Agreement, dated as of September 29, 2009 (the “Original Credit Agreement”), as amended by that certain First Amendment to Second-Lien Term Loan Credit Agreement dated as of August 30, 2010, and that certain Second Amendment to Second-Lien Term Loan Credit Agreement dated as of March 29, 2011 (such amendments, together with the Original Credit Agreement, the “Credit Agreement”) pursuant to which Lenders made a loan to Borrowers in the aggregate principal amount of $72,500,000 (the “Loan”) subject to and upon terms, covenants and conditions contained therein; and
WHEREAS, the parties hereto now desire to amend the Credit Agreement in certain respects and to waive certain covenants as set forth below.
NOW, THEREFORE, in consideration of these premises, the promises, mutual covenants and agreements contained in this Third Amendment, and fully intending to be legally bound by this Third Amendment, the parties hereto hereby agree as follows:
1. Definitions.
Unless otherwise specifically defined herein, all defined terms used in this Third Amendment shall have their respective meanings set forth in the Credit Agreement.
2. Waivers.
Compliance with Section 5.15 of the Credit Agreement which requires that Parent’s Consolidated Cash Flow for all Test Periods after the financial quarter of Parent ending June 30, 2010 exceed $50,000,000 is hereby waived solely with respect to the fiscal quarters of Parent ending September 30, 2011 and December 31, 2011.
3. Amendments.
a. Article I, Definitions, is hereby amended by inserting the following definition immediately after the definition of “Test Period:”
“Third Amendment Effective Date” means September 14, 2011.
b. Article II, The Credits, is hereby amended as follows: (i) by inserting a new Section 2.05(d) to read as follows:
“Section 2.05(d) Exit Fee. The Borrowers jointly and severally agree to pay to the Administrative Agent, for the ratable benefit of the Lenders, an exit fee in the amount of $6,000,000 (the “Exit Fee”) upon the earliest to occur of (i) the Final Maturity Date, (ii) the payment in full of the Loans prior to the Final Maturity Date or (iii) the acceleration of the Loans in accordance with Section 7.01; provided, that the Exit Fee shall in no event be payable until all Obligations in respect of the First Lien Notes have been paid in full in cash, and the Lenders agree to pay over to the Trustee for the First Lien Notes for the benefit of the holders of such Obligations any amount received by them in respect of the Exit Fee in any insolvency proceeding (or otherwise) to the extent such Obligations have not then been paid in full in cash.
and (ii) by inserting a new Section 2.14 to read as follows:
“Section 2.14. Payment of PIK Interest during Waiver Effectiveness Period. Notwithstanding any other provision of the Loan Documents, the Borrowers shall not make any cash payment in respect of interest including, without limitation, the interest payments due September 30, 2011 and March 31, 2012, or principal on the Loans during the period commencing on the Third Amendment Effective Date and continuing through the next business day after March 31, 2012. Interest payments due during such period shall be paid in kind by capitalizing such interest and adding it to the aggregate principal amount of the Loans of each Lender on a pro rata basis, on the relevant Interest Payment Date. Any interest capitalized in accordance with the preceding sentence shall thereafter bear interest as a Loan in accordance with Section 2.06 of this Agreement and shall be evidenced by one or more promissory notes.”
c. Article V, Covenants, is hereby amended by inserting a new Section 5.26 to read as follows:
“Section 5.26. Additional Covenants.
(a) During the period ending March 31, 2012, without the consent of the Lenders, Borrowers shall not directly or indirectly, or direct or permit any of their Subsidiaries to, make any payment (other their own fees and expenses) in respect of any material litigation pending against any of the Borrowers.”
(b) No later than October 15, 2011, Parent shall demonstrate to the reasonable satisfaction of the Lenders that it has achieved a reduction (not including any reduction
by virtue of any aircraft returned to the relevant lessor) resulting in annual aircraft lease expense by restructuring above-market leases to rates resulting in aggregate annualized cost reductions of at least $18 million for each of calendar years 2012 and 2013 compared to current costs for such leases.
(c) No later than March 31, 2012, Borrowers shall demonstrate to the reasonable satisfaction of the Lenders that Borrowers expect to be in compliance with Section 5.15 of the Credit Agreement for the reporting period ending March 31, 2012.
d. Article VII, Events of Default, is hereby amended (i) by deleting the reference to “Section 5.02(b)(i), 5.05, 5.10 or 5.22” in Section 7.01(d) and replacing it with “Section 5.02(b)(i), 5.05, 5.10, 5.22, 5.26(a) or 5.26(c)” and (ii) by deleting the reference to “Section 5.01, 5.02, 5.06, 5.07, 5.09, 5.12, 5.13, 5.14, 5.15, 5.16, 5.17, 5.19, 5.20, 5.21, 5.23 or 5.24” in Section 7.01(e) and replacing it with “Section 5.01, 5.02, 5.06, 5.07, 5.09, 5.12, 5.13, 5.14, 5.15, 5.16, 5.17, 5.19, 5.20, 5.21, 5.23, 5.24 or 5.26(b)”.
4. Representations and Warranties of the Borrowers.
Borrowers represent and warrant to the Lenders and the Agent (both before and after giving effect to this Third Amendment) that:
a. Each of the Borrowers has the corporate power and authority, and the legal right, to execute, deliver and perform this Third Amendment.
b. Each of the Borrowers has taken all necessary corporate action to authorize the execution, delivery and performance of this Third Amendment.
c. No consent or authorization of, filing with, notice to or other act by, or in respect of, any Governmental Authority or any other Person is required in connection with this Third Amendment or the execution, delivery, performance, validity or enforceability of this Third Amendment, or the performance, validity or enforceability of the Credit Agreement except consents, authorizations, filings and notices which have been obtained or made and are in full force and effect.
d. This Third Amendment has been duly executed and delivered on behalf of the Borrowers. This Third Amendment and the Credit Agreement as amended and supplemented thereby constitute the legal, valid and binding obligations of the Borrowers and are enforceable against the Borrowers in accordance with their terms except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
e. Subject to the effectiveness of the waivers in Section 2 hereof, and the amendments in Section 3 hereof, neither an Event of Default, as defined in the Credit Agreement, nor any event which with the lapse of time or notice or both could become an Event of Default, has occurred and is continuing as of the date hereof.
f. Neither the execution, delivery or performance by any Borrower of the Third Amendment nor the consummation of any transactions contemplated therein will conflict with, violate, constitute a breach of or a default (with the passage of time or otherwise) under, require the consent of any Person (other than consents already obtained and in full force and effect) under, or result in the imposition of (or the obligation to create) a Lien on any assets of any Borrower (except for existing Liens pursuant to the Collateral Agreements and the Senior Note Documents) under or pursuant to the Organizational Documents of such Borrower, any Federal, state, local or foreign statute, law (including, without limitation, common law) or ordinance, or any judgment, decree, rule, regulation or order of any Governmental Authority application to such Borrower or any of its properties or any Applicable Agreement, except for such conflicts, violations, breaches, defaults, lack of any consents or imposition of Liens that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Entry by the Borrowers into and performance by the Borrowers of the Third Amendment will not result in a default under any Senior Note Document.
g. Each of the representations and warranties set forth in Article III of the Credit Agreement is true and correct as of the date hereof in all material respects, except (i) any such representations and warranties which explicitly relate to an earlier date, which such representations and warranties were true and correct as of such date in all material respects and (ii) as disclosed in any filings by Parent with the Commission or any reports delivered by the Parent pursuant to Section 5.01 of the Credit Agreement.
5. Effectiveness.
a. Except to the extent specifically amended and supplemented hereby, all of the terms, conditions and provisions of the Credit Agreement, as amended, shall remain unmodified, and the Credit Agreement, as amended and supplemented by this Third Amendment, is confirmed as being in full force and effect. By its signature below, each Guarantor hereby acknowledges its receipt of a copy of this Third Amendment and consents to the terms and conditions hereof and the transactions contemplated hereby. Each Guarantor hereby further (i) affirms and confirms its guarantees, indemnification obligations and other commitments and obligations under the Credit Agreement and (ii) agrees that Article VI of the Credit Agreement and all guarantees and other commitments and obligations shall continue to be in full force and effect following the effectiveness of the Third Amendment.
b. All references to the Credit Agreement herein or in any other document or instrument between or among any of the parties hereto shall hereafter be construed to be references to the Credit Agreement as modified by this Third Amendment. This Third Amendment shall be and shall be deemed to be a “Loan Document” for all purposes under the Credit Agreement.
c. The Administrative Agent and Collateral Agent are hereby directed by the Lenders to enter into and execute this Amendment.
d. The effective date of this Third Amendment (the “Third Amendment Effective Date”) shall be September 14, 2011; provided that the Third Supplemental Indenture in the form
attached hereto as Exhibit A shall have been executed by all relevant parties and shall have become effective contemporaneously with this Third Amendment.
6. Counterparts.
This Third Amendment may be executed in any number of counterparts, each of which when executed and delivered shall be deemed an original, but all of which constitute one instrument. In making proof of this Third Amendment, it shall not be necessary to produce or account for more than one counterpart thereof signed by each of the parties hereto. Delivery of an executed counterpart of this Third Amendment electronically or by facsimile shall be effective as delivery of an original executed counterpart hereof.
7. Notice of Final Agreement.
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
8. Conflict.
In the event of a conflict between the terms of the Credit Agreement as modified by this Third Amendment and the terms of the Intercreditor Agreement, the terms contained in the Credit Agreement as modified by this Third Amendment shall control.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.]
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment as of the date and year first above written.
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BORROWERS: |
GLOBAL AVIATION HOLDINGS, INC. | |
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NORTH AMERICAN AIRLINES, INC. | |
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WORLD AIRWAYS, INC. | |
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By: |
/s/ Brian S. Gillman |
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Name: |
Brian S. Gillman |
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Title: |
Sr. Vice President, General Counsel & Secretary |
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GUARANTORS: |
NEW ATA INVESTMENT INC. | |
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NEW ATA ACQUISITION INC. | |
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WORLD AIR HOLDINGS, INC. | |
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WORLD AIRWAYS PARTS COMPANY, LLC | |
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GLOBAL AVIATION VENTURES SPV LLC | |
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GLOBAL SHARED SERVICES, INC. | |
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By: |
/s/ Brian S. Gillman |
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Name: |
Brian S. Gillman |
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Title: |
Sr. Vice President, General Counsel & Secretary |
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COLLATERAL AGENT: |
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and Collateral Agent | |
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By: |
/s/ David Bergstrom |
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Name: |
David Bergstrom |
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Title: |
Vice President |
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LENDERS: |
BLACKSTONE / GSO CAPITAL SOLUTIONS FUND LP, by GSO Capital Partners, LP, as investment manager, as a Lender | |
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By: |
/s/ Jason G. New |
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Name: |
Jason G. New |
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Title: |
Senior Managing Director |
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BLACKSTONE / GSO CAPITAL SOLUTIONS OVERSEAS MASTER FUND L.P., by Blackstone / GSO Capital Solutions Overseas Associates LLC, as a Lender | |
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By: |
/s/ Jason G. New |
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Name: |
Jason G. New |
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Title: |
Senior Managing Director |