Exhibit
10.23


 


EXECUTION
COPY


 


Global
Aviation Holdings Inc.

101 World Drive

Peachtree, GA 30269-6965


 


GSO Capital Partners LP


280 Park Avenue, 11th Floor


New York, NY 10017


Attention: Jason New


Copy to: George Fan


 


MatlinPatterson ATA Holdings LLC


520 Madison Avenue


New York, NY 10022-4213


Attention: Mark Palmer


 


September 29,
2009


 


Shareholder
Letter Agreement


 


Reference is made to the
Second Lien Term Loan Credit Agreement, dated as of September 29, 2009
(the “Term Loan Agreement”), among Global Aviation Holdings Inc. (the “Company”),
North American Airlines, Inc., World Airways, Inc., certain
subsidiaries of the Company as guarantors, certain affiliates (the “Lenders”)
of GSO Capital Partners LP (“GSO”) as lenders and certain other parties
thereto. Terms used but not defined in this letter agreement (this “Shareholder
Letter Agreement”)’ shall have the meanings assigned to them in the Term
Loan Agreement.


 


Each of the Company and
MatlinPatterson ATA Holdings LLC (“MatlinPatterson”) acknowledges that
it will receive substantial benefit as a borrower under the Term Loan
Agreement, and as the largest shareholder of the Company, respectively, and
that GSO and the Lenders have required the Company and MatlinPatterson to enter
into this Shareholder Letter Agreement as a condition, among others, to the
Lenders entering into the Term Loan Agreement and providing the financing
thereunder. Accordingly, each party to this Shareholder Letter Agreement, in
consideration of the foregoing and for other good and valuable consideration
(the sufficiency of which is hereby acknowledged), agrees as follows:


 


1.     On the Closing Date, the Company and the
Board of Directors of the Company (the “Board”) shall (i) increase
the number of directors serving on the Board by one to eight and (ii) elect,
effective as of the Closing Date, Jason New or any other person designated by
GSO (the “GSO Director”) to be a member of the Board.


 


2.     Following the Closing Date and until the
earlier of (a) (1) less than twenty-five percent (25%) of the aggregate
principal amount of the Lenders’ Commitments on the Closing Date remaining
outstanding in the form of Loans or Exchange Notes (taken as a whole) or (2)


 

















 


GSO and its Affiliates collectively holding
less than a majority of the outstanding aggregate principal amount of Loans or
Exchange Notes (taken as a whole) and (b) a Qualified IPO (as defined in
the Company’s Amended and Restated By-Laws (as amended in connection with the
transactions contemplated by this Shareholder Letter Agreement, the “By-Laws”)),
GSO shall have the right to designate a GSO Director and the Company shall
nominate the GSO Director at any annual or special meeting of stockholders of
the Company at which (or for any action by written consent with respect to
which) members of the Board are to be elected (and at or with respect to which
the seat held by the GSO Director is subject to election), and shall take
and/or cause to be taken all other necessary or desirable actions within its
control (including calling special Board and stockholder meetings and
soliciting proxies and/or votes in favor of the election of the GSO Director),
to cause such GSO Director to be elected to the Board; provided that the
election and appointment of any GSO Director shall be subject to all legal
requirements and the Company’s reasonable governance standards regarding
service as a director of the Company, as determined in good faith by the Board,
or, if applicable, any committee thereof designated by the Board to create and
administer such governance standards; provided,  further, that the
Company shall not take or permit to be taken any action to amend, alter or
modify any such governance standards, the Company’s Amended and Restated
Certificate of Incorporation, as amended (the “Charter”), or the By-Laws,
in each case with respect to eligibility of members of the Board, without the
approval of GSO, if such amendment’s purpose is to make GSO’s designee
ineligible to serve as a member of the Board.


 


3.     For so long as GSO has the right to
designate a GSO Director in accordance with paragraph 2 above, the Company
shall take and/or cause to be taken all necessary or desirable actions within
its control so that the GSO Director shall not be removed from the Board
(without cause), without the written consent of GSO.


 


4.     For so long as GSO has the right to
designate a GSO Director in accordance with paragraph 2 above, the Company
shall take and/or cause to be taken all necessary or desirable actions within
its control to remove any such GSO Director from the Board if requested to do
so by GSO.


 


5.     In the event that a designee of GSO shall
for any reason (including death, disability, disqualification, resignation,
removal or failure to be elected) cease to serve as a member of the Board, the
Board will promptly, to the extent permitted by the By-Laws, elect to the Board
another designee of GSO, which individual shall then be deemed a GSO Director
for all purposes hereunder, so long as GSO has the right to designate a GSO
Director in accordance with paragraph 2 above; provided, that the
Company shall take and/or cause to be taken all necessary or desirable actions
within its control so that such election is permitted by the By-Laws.


 


6.     For so long as GSO has the right to
designate a GSO Director in accordance with paragraph 2 above, the Company shall not take or permit
to be taken, without the written consent of the GSO Director, any action to
amend, alter, repeal or modify the Charter or the By-Laws, or to adopt new  By-Laws,
in each case in a manner that would materially and adversely affect the rights
of holders of Class A Common Stock of the Company (for purposes of any
amendment, alteration, repeal or modification to Section 7.3 or Article VIII
of the By-Laws, other than any Qualified Class A Stockholder (as defined
in the By-Laws)).


 


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7.     For so long as GSO has the right to
designate a GSO Director in accordance with paragraph 2 above, MatlinPatterson
shall (and shall cause each of its Affiliates (if any) that hold shares in the
Company to) (a) vote and/or cause to be voted all of its shares in the
Company which are voting shares and any other voting securities of the Company
over which it has voting control and (b) take and/or cause to be taken all
other necessary or desirable actions within its control (whether in its
capacity as a stockholder or otherwise, and including attendance at meetings in
person or by proxy for purposes of obtaining a quorum and execution of written
consents in lieu of meetings), including causing the Company to take all
necessary or desirable actions within its control (including calling special
Board and stockholder meetings), in each case to (i) elect the GSO
Director to be a member of the Board, (ii) subject to clause (iii) below,
prevent the removal (without cause) of the GSO Director from the Board and (iii) to
remove any such GSO Director if requested to do so by GSO.


 


8.     This Shareholder Letter Agreement will
automatically terminate, and no party shall have any further rights or obligations
hereunder, upon GSO ceasing to have the ability to designate a GSO Director in
accordance with paragraph 2 above.


 


9.     This Shareholder Letter Agreement embodies
the entire agreement and understanding of the parties hereto in respect of the
subject matter hereof and supersedes all prior term sheets, agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof. There are no restrictions, promises, representations,
warranties, agreements or undertakings whatsoever with respect to the subject
matter contemplated by this Shareholder Letter Agreement other than those
expressly set forth herein.


 


10.   This Shareholder Letter Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but
neither this Shareholder Letter Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto without
the prior written consent of the other party, and any attempt to make such
assignment without such consent shall be null and void.


 


11.   This Shareholder Letter Agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement, and shall become effective when one or more counterparts
have been signed by each of the parties hereto and delivered, in person, by
facsimile or by electronic image scan, receipt acknowledged in each case, to
the other party hereto.


 


12.   Each of the parties hereto acknowledges and
agrees that the other party hereto would be irreparably damaged and that money
damages are not an adequate remedy if any of the provisions of this Shareholder
Letter Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that each party hereto shall
be entitled to an injunction or injunctions to prevent breaches of this
Shareholder Letter Agreement and to specifically enforce this Shareholder
Letter Agreement and the terms and provisions hereof in any court of the United
States or any state thereof, in addition to any other remedy to which such
party may be entitled, at law or in equity. It is further agreed that none of
the parties hereto shall raise the defense that there is an adequate remedy at
law.


 


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13.   Each party hereto represents and warrants to
the other parties hereto that such party has the power and authority to enter
into this Shareholder Letter Agreement and to perform its obligations hereunder
and has by proper action duly authorized the execution and delivery of this
Shareholder Letter Agreement. MatlinPatterson represents and warrants to GSO
that, as of the Closing Date, MatlinPatterson (together with its Affiliates)
owns (and has voting power with respect to) 237,034 shares of the Company’s Class A
Common Stock.


 


14.   This Shareholder Letter Agreement and any
disputes arising under or related hereto shall be construed in accordance with
and governed by the law of the State of New York, without regard to conflicts
of law principles that would require the application of the laws of another
jurisdiction.


 


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  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  GLOBAL AVIATION HOLDINGS INC.,

  
	
   

  	
   

  
	
   

  	
  /s/ Mark M. McMillin

  
	
   

  	
  Name: Mark M. McMillin

  
	
   

  	
  Title:  
  General Counsel & Corporate Secretary

  



 


[Signature Page to Shareholder Letter Agreement]


 

















 


Accepted and agreed
 as of the date first written above:


 


	
   

  	
  GSO CAPITAL PARTNERS LP,

  
	
   

  	
   

  
	
   

  	
  /s/ George Fan

  
	
   

  	
  Name: George Fan

  
	
   

  	
  Title:  
  Chief Legal Officer

  



 


[Signature Page to Shareholder Letter Agreement]


 

















 


Accepted and agreed
 as of the date first written above:


 


	
   

  	
  MATLINPATTERSON ATA HOLDINGS LLC,

  
	
   

  	
   

  
	
   

  	
  /s/ Lawrence M. Teitelbaum

  
	
   

  	
  Name: Lawrence M. Teitelbaum

  
	
   

  	
  Title:  
  Authorized Signature

  



 


[Signature Page to Shareholder Letter Agreement]