EXHIBIT 10.3
April 13, 2006
Macquarie Infrastructure Company Inc.
600 Fifth Avenue, 21st Floor
New York, NY 10020
Attention: Peter Stokes
RE: MACQUARIE INFRASTRUCTURE COMPANY'S ACQUISITION OF TRAJEN HOLDINGS, INC.
Ladies and Gentlemen:
You have advised Macquarie Bank Limited ("MBL") that your subsidiary, Macquarie
FBO Holdings LLC, a Delaware corporation ("MFBO"), the parent company of North
America Capital Holding Company ("NACH", or "Borrower"), a Delaware corporation,
intends to enter into a Purchase and Sale Agreement with Trajen Holdings, Inc.
("Trajen") and the Stockholders thereof regarding an acquisition of Trajen. The
purchase price is $331,050,000 plus the costs to acquire Trajen (as defined in
the Purchase Agreement).
You have also advised MBL that the financing for the acquisition will comprise
of (i) additional equity investment by Macquarie FBO Holdings LLC to Borrower
and (ii) an increase in Borrower's term loan facility up to $180 million ("Term
Facility" and together with NACH's revolving credit facilty, the "Senior Credit
Facilities"). The financing of the acquisition will also include an additional
$35,000,000 backstop facility which shall be available to acquire the existing
loans from any current lender to NACH that does not consent to an increase in
NACH's Senior Credit Facilities ("Backstop Facility"). The acquisition and
financing and all related transactions are hereinafter collectively referred to
as the "Transaction."
In connection with the foregoing, MBL is pleased to advise you of its commitment
to provide $35,000,000 of the incremental principal amount of the Term Facility
and is also committed to provide $5,000,000 of the Backstop Facility, all upon
and subject to the terms and conditions set forth in this letter and in the Loan
Facilities Term Sheet attached as Exhibit A hereto and incorporated herein by
this reference (the "Term Sheet" and, together with this letter agreement and
the Fee Schedule attached as Exhibit B, the "Commitment Letter"). All
capitalized terms used and not otherwise defined herein shall have the same
meanings as specified therefor in the Term Sheet.
The commitment of MBL hereunder and the undertaking of MBL to provide the
services described herein are subject to and conditional upon the satisfaction
of each of the conditions precedent specified in the Term Sheet in a manner
acceptable to MBL and the negotiation, execution and delivery of definitive
documentation (the "Credit Documentation") for the Senior Credit Facilities
consistent with the Term Sheet and otherwise satisfactory to MBL.
MBL and the Mandated Lead Arrangers ("MLA's"), (together, the "Underwriters")
intend to commence syndication of the Senior Credit Facilities promptly upon
execution of the Purchase and Sale Agreement. You agree to actively assist, and
to cause the Borrower to actively assist, the Underwriters in achieving a
syndication of the Senior Credit Facilities that is satisfactory to the
Underwriters and you. Such assistance shall include (a) your providing and
causing your advisors to provide the Underwriters and the other Lenders upon
request with all information reasonably deemed necessary by the Underwriters to
complete syndication, including, but not limited to, information and evaluations
prepared by you, the Borrower and your and their advisors, or on your or their
behalf, relating to the Transaction, (b) your assistance in the preparation of
an Information Memorandum to be used in connection with the syndication of the
Senior Credit Facilities, (c) using your commercially reasonable efforts to
ensure that the syndication efforts of the Underwriters benefit materially from
your existing lending relationships and the existing banking relationships of
the Borrower, and (d) otherwise assisting the Underwriters in their syndication
efforts, including by making your officers and advisors and the officers and
advisors of the Borrower available from time to time to attend and make
presentations regarding the business and prospects of the Borrower at one or
more meetings of prospective Lenders.
It is understood and agreed that the Underwriters will manage and control all
aspects of the syndication in consultation with you, including decisions as to
the selection of prospective Lenders (with your consent, not to be unreasonably
withheld) and any titles offered to proposed Lenders, when commitments will be
accepted and the final allocations of the commitments among the Lenders. It is
understood that no Lender participating in the Senior Credit Facilities will
receive compensation from you in order to obtain its commitment, except on the
terms contained herein in the Term Sheet, or in any other document executed
concurrently with this letter.
Prior to you or any of your affiliates arranging, awarding, syndicating or
issuing (or attempting to arrange, award, syndicate or issue) any commercial
bank or other credit facilities for the acquisition of fixed base operations,
airport management or similar airport service businesses (the "Other
Financing"), or announcing any such arrangement, award, syndication or issuance,
at any time from the date of this Letter Agreement until the earlier of (a) the
date on which general syndication of the Senior Credit Facilities has been
completed and MBL has reduced its commitment under the Senior Credit Facilities
to a maximum final hold of $50 million ("Successful Syndication") and (b) the
date that is 90 calendar days after the launch of syndication (to be commenced
no later than May 1, 2006), you agree to consult with the Underwriters in good
faith and use commercially reasonable endeavors to ensure that there is no
competition between the marketing of the Senior Credit Facilities and the Other
Financing. The foregoing sentence shall not limit the ability of you or any
affiliate to restructure or amend any debt facility or other facility evidencing
debt of any affiliate (provided that such restructuring, consent or amendment
does not increase the aggregate amount of loans or commitments thereunder).
You hereby represent, warrant and covenant that (a) all information, other than
Projections (as defined below), which has been or is hereafter made available to
MBL or the Lenders by you or any of your representatives (or on your or their
behalf) or by the Borrower or any of its subsidiaries or representatives (or on
their behalf) in connection with any aspect of the
Transaction (the "Information") is and will be complete and correct in all
material respects and does not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
contained therein not misleading in light of the circumstances under which they
were made and (b) all financial projections concerning the Borrower that have
been or are hereafter made available to MBL or the Lenders by you or any of your
representatives (or on your or their behalf) or by the Borrower or any of its
subsidiaries or representatives (or on their behalf) (the "Projections") have
been or will be prepared in good faith based upon reasonable assumptions (it is
understood and acknowledged, however, that such Projections are based upon a
number of estimates and assumptions and are subject to significant business,
economic and competitive uncertainties and contingencies and that, accordingly,
no assurances are given and no representations, warranties or covenants are made
that any of the assumptions are correct, that such Projections will be achieved
or that the forward-looking statements expressed in such Projections will
correspond to actual results). You agree to furnish us with such Information and
Projections as we may reasonably request and to supplement the Information and
the Projections from time to time until the date of the initial borrowing under
the Senior Credit Facilities (the "Closing Date") so that the representation,
warranty and covenant in the immediately preceding sentence is correct on the
Closing Date. In issuing this commitment and in arranging and syndicating the
Senior Credit Facilities, MBL is and will be using and relying on the
Information.You agree that you have not relied on the Information provided by
MBL and have satisfied yourself in respect of all matters relevant to this
financing and the Transaction.
You agree to indemnify and hold harmless MBL, each Lender and each of their
related parties, affiliates and their respective officers, directors, employees,
agents, advisors and other representatives (each an "Indemnified Party") from
and against (and will reimburse each Indemnified Party as the same are incurred
for) any and all claims, damages, losses, liabilities and expenses (including,
without limitation, the reasonable fees, disbursements and other charges of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense in connection therewith) (a) any
aspect of the Transaction or any similar transaction and any of the other
transactions contemplated thereby or (b) the Senior Credit Facilities and any
other financings, or any use made or proposed to be made with the proceeds
thereof, except to the extent such claim, damage, loss, liability or expense is
found in a final, nonappealable judgment by a court of competent jurisdiction to
have resulted from such Indemnified Party's gross negligence, bad faith or
willful misconduct. The parties agree that this indemnity continues to apply
except to the extent expressly agreed between the parties under the terms of the
Transaction. You also agree that no Indemnified Party shall have any liability
(whether direct or indirect, in contract, tort or otherwise) to you or your
subsidiaries or affiliates or to you or their respective equity holders or
creditors arising out of, related to or in connection with any aspect of the
Transaction, except to the extent of direct, as opposed to special, indirect,
consequential or punitive, damages determined in a final non-appealable judgment
by a court of competent jurisdiction to have resulted from such Indemnified
Party's gross negligence, bad faith or willful misconduct. It is further agreed
that MBL shall only have liability to you (as opposed to any other person), that
MBL shall be liable solely in respect of its own commitment to the Senior Credit
Facilities on a several, and not joint, basis with any other Lender and that
such liability shall only arise to the extent damages have been caused by a
breach of MBL's obligations
hereunder to negotiate in good faith definitive documentation for the Senior
Credit Facilities on the terms set forth herein as determined in a final
non-appealable judgment by a court of competent jurisdiction. In the event that
any claim or demand by a third party for which you may be required to indemnify
an Indemnified Party hereunder (a "Claim") is asserted against or sought to be
collected from any Indemnified Party by a third party, such Indemnified Party
shall as promptly as practicable notify you in writing of such Claim, and such
notice shall specify (to the extent known) in reasonable detail the amount of
such Claim and any relevant facts and circumstances relating thereto; provided,
however, that any failure to give such prompt notice or to provide any such
facts and circumstances shall not constitute a waiver of any rights of the
Indemnified Party, except to the extent that the failure was other than
inadvertent and the rights of the Indemnifying Party are actually prejudiced
thereby.
You shall be entitled to appoint counsel of your choice at your expense to
represent an Indemnified Party in any action for which indemnification is sought
(in which case you shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by that Indemnified Party except as set forth
below); provided, however, that such counsel shall be satisfactory to such
Indemnified Party. Notwithstanding your election to appoint counsel to represent
an Indemnified Party in any action, such Indemnified Party shall have the right
to employ separate counsel (including local counsel, but only one such counsel
in any jurisdiction in connection with any action), and you shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the use of
counsel chosen by you to represent the Indemnified Party would present such
counsel with a conflict of interest; (ii) the actual or potential defendants in,
or targets of, any such action include both the Indemnified Party and you and
the Indemnified Party shall have reasonably concluded that there may be legal
defenses available to it and/or other Indemnified Parties which are different
from or additional to those available to you; (iii) you shall not have employed
counsel to represent the Indemnified Party within a reasonable time after notice
of the institution of such action; or (iv) you shall authorize the Indemnified
Party to employ separate counsel at your expense. You shall not be liable for
any settlement or compromise of any action or claim by an Indemnified Party
affected without your prior written consent, which consent shall not be
unreasonably withheld.
All payments to be made under the Commitment Letter shall be paid in the
currency of invoice and in immediately available, freely transferable cleared
funds to such account with such bank as Lenders notify to the Company, and shall
be paid without (and free and clear of any deduction for) set-off or
counter-claim and without any deduction or withholding for or on account of tax
(a "Tax Deduction") unless a Tax Deduction is required by law. If a Tax
Deduction is required by law to be made, the amount of the payment due shall be
increased to an amount which (after making any Tax Deduction) leaves an amount
equal to the payment which would have been due if no Tax Deduction had been
required.
This Commitment Letter (including its Exhibits A and B) and the contents hereof
and thereof are confidential and, except for the disclosure hereof or thereof on
a confidential basis to your accountants, attorneys and other professional
advisors retained by you in connection with the Transaction, Trajen, or as
otherwise required by law, may not be disclosed in whole or in part to any
person or entity without our prior written consent; provided, however, it is
understood and agreed that you may disclose this Commitment Letter (including
the Term Sheet (Exhibit A) but not the Fee Schedule (Exhibit B)), after your
acceptance of this Commitment Letter, in filings
with the Securities and Exchange Commission and other applicable regulatory
authorities and stock exchanges. MBL shall be permitted to use information
related to the syndication and arrangement of the Senior Credit Facilities in
connection with marketing, press releases or other transactional announcements
or updates provided to investor or trade publications; provided, that any press
release or public announcement shall not be made without your prior written
consent, not to be unreasonably withheld. MBL hereby notify you that pursuant to
the requirements of the USA Patriot Act, Title III of Pub. L. 107-56 (signed
into law October 26, 2001) (the "Act"), it is required to obtain, verify and
record information that identifies you, which information includes your name and
address and other information that will allow MBL to identify you in accordance
with the Act.
You acknowledge that MBL or its affiliates may be providing financing or other
services to parties whose interests may conflict with yours. MBL agrees that it
will not furnish confidential information obtained from you to any of its other
customers and that it will treat confidential information relating to you, the
Borrower and your and their respective affiliates with the same degree of care
as it treats its own confidential information. MBL further advises you that it
will not make available to you confidential information that it has obtained or
may obtain from any other customer. In connection with the services and
transactions contemplated hereby, you agree that MBL is permitted to access, use
and share with any of its bank or non-bank affiliates, agents, advisors (legal
or otherwise) or representatives any information concerning you, the Borrower or
any of your or its respective affiliates that is or may come into the possession
of MBL or any of such affiliates.
The provisions of the immediately preceding seven paragraphs shall remain in
full force and effect regardless of whether any definitive documentation for the
Senior Credit Facilities shall be executed and delivered, and notwithstanding
the termination of this Commitment Letter or any commitment or undertaking of
MBL hereunder; provided, however, that you shall be deemed released of your
reimbursement and indemnification obligations hereunder upon the execution of
all definitive documentation for the Senior Credit Facilities and the initial
extension of credit thereunder.
This Commitment Letter may be executed in counterparts which, taken together,
shall constitute an original. Delivery of an executed counterpart of this
Commitment Letter by telecopier, e-mail or facsimile shall be effective as
delivery of a manually executed counterpart thereof.
This Commitment Letter shall be governed by, and construed in accordance with,
the laws of the State of New York. Each of you and MBL hereby irrevocably waives
any and all right to trial by jury in any action, proceeding or counterclaim
(whether based on contract, tort or otherwise) arising out of or relating to
this Commitment Letter (including, without limitation, the Term Sheet), the
Transaction and the other transactions contemplated hereby and thereby or the
actions of MBL in the negotiation, performance or enforcement hereof. The
commitments and undertakings of MBL may be terminated by us if you fail to
perform your obligations under this Commitment Letter on a timely basis.
This Commitment Letter, together with the Term Sheet, embodies the entire
agreement and understanding among MBL, you, and your affiliates with respect to
the Senior Credit Facilities and supersedes all prior agreements and
understandings relating to the specific matters hereof.
However, please note that the terms and conditions of the commitment and
undertakings of MBL hereunder are not limited to those set forth herein or in
the Term Sheet. Those matters that are not covered or made clear herein or in
the Term Sheet are subject to mutual agreement of the parties. No party has been
authorized by MBL to make any oral or written statements that are inconsistent
with this Commitment Letter.
This Commitment Letter is not assignable by you without our prior written
consent and is intended to be solely for the benefit of the parties hereto and
the Indemnified Parties.
This Commitment Letter and all commitments and undertakings of MBL hereunder
will expire at 5:00 p.m. (New York City time) on April 18, 2006 unless you
execute this Commitment Letter and return it to us prior to that time.
Thereafter, all commitments and undertakings of MBL hereunder will expire on the
earliest of (a) 60 days after the date of this letter, unless the definitive
documents for the financing of the Transaction have been executed and delivered,
and (b) the acceptance by you or any of your affiliates of an offer for all or
any substantial part of the capital stock or property and assets of the Borrower
and their subsidiaries other than as part of the Transaction. In consideration
of the time and resources that MBL will devote to the Senior Credit Facilities,
you agree that, until such expiration, you will not solicit, initiate, entertain
or permit, or enter into any discussions in respect of, any offering, placement
or arrangement of any competing senior credit facilities for the Borrower and
their subsidiaries with respect to the matters addressed in this letter.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
We are pleased to have the opportunity to work with you in connection with this
important financing.
Very truly yours,
MACQUARIE BANK LIMITED
By: /s/ John Anthony
------------------------------------
Name: John Anthony
Title: Manager, Investment Banking Group
By: /s/ Tim Hallam
------------------------------------
Name: Tim Hallam
Title: Associate Director,
Investment Banking Group
ACCEPTED AND AGREED TO
AS OF THE DATE FIRST ABOVE WRITTEN:
MACQUARIE INFRASTRUCTURE COMPANY INC.
By: /s/ Peter Stokes
---------------------------------
Name: Peter Stokes
Title: Chief Executive Officer
EXHIBIT A
INDICATIVE SUMMARY OF TERMS AND CONDITIONS
13 APRIL, 2006
The terms and conditions contained in the documents in respect of the existing
Loan Agreement will apply equally to this transaction, subject only to those
variations and amendments which are expressly identified in this Indicative
Summary of Terms and Conditions. Capitalized expressions in this document which
are not otherwise defined are to be attributed the same meaning as provided in
Appendix A to the existing Loan Agreement.
I. THE PARTIES
1. Borrower North America Capital Holding Company
("NACH") whose sole business is the
ownership of entities ("Project Entities")
that operate Fixed Base Operations
("FBO's"), and manage airports and is
seeking to acquire Trajen Holdings, Inc.
("Trajen").
2. Purpose To amend the existing $305 million Loan
Agreement dated December 12, 2005 and to
provide an additional $180 million of debt
needed to fund a portion of the Trajen
acquisition costs.
3. Equity Investor Macquarie FBO Holdings LLC, a Delaware
limited liability company, indirectly 100%
owned by Macquarie Infrastructure Company
Trust, a New York Stock Exchange listed
entity ("MIC").
4. Lead Arrangers Mizuho Corporate Bank, Ltd, Bayerische
Landesbank and Bank of Ireland.
5. Co-Lead Arranger Macquarie Bank Limited ("MBL").
6. Syndication Agent Bayerische Landesbank.
7. Administrative Agent Mizuho Corporate Bank, Ltd.
8. Documentation Agent Bank of Ireland.
9. Senior Lenders Lead Arrangers, MBL and other banks or
financial institutions to whom the
Facilities may be syndicated.
10. Initial Lenders Each Lead Arranger and each Co-Lead
Arranger.
11. Revolving Loan Lender Mizuho Corporate Bank, Ltd.
12. Legal Advisor Orrick, Herrington & Sutcliffe LLP.
13. Other Consultants Technical: The Aviation Group/Leigh Fisher
Associates (a division of Jacobs Consulting
Inc)
Environmental: Environmental Strategies
Consulting Insurance: Moore-McNeil, LLC
Accounting: Ernst and Young.
II. THE FACILITIES
14. The Facilities The Facilities will consist of the
following:
(i) Term Loan Facility of $300,000,000;
(ii) Delayed Draw Acquisition Facility up
to $180,000,000; and
(iii) Revolving Credit Facility of
$5,000,000.
TERM LOAN FACILITY
15. Use of Proceeds The Term Loan was used to refinance
existing debt of NACH and MANA, pay for any
costs and expenses associated with the
borrowing and finance a distribution to
Equity Investor. 100% of the Term Loan
Proceeds were drawn on December 14, 2005.
16. Term Loan Maturity Date December 12, 2010.
17. Closing Date December 12, 2005.
18. Mandatory Prepayment The Borrower shall promptly make Mandatory
Prepayments in the following situations.
The Mandatory Prepayments shall apply to
the initial balance of the Term Loan
Facility and any amounts added to the Term
Loan Facility due to draws under the
Delayed Draw Acquisition Facility.
i. If any insurance proceeds (other than
business interruption insurance) are not
used for reconstruction, Borrower will
prepay that amount of the Term Loan
Facility, without penalty, subject to
appropriate materiality tests.
ii. If during any fiscal year any net
proceeds from a sale (or series of sales)
of the Borrower's or its Subsidiary's
property that is not used to purchase
replacement assets exceeds $250,000,
Borrower will prepay the Loans in the
amount of such excess.
iii. If Borrower or its Subsidiaries incurs
debt for borrowed money that is not
permitted indebtedness, 100% of the net
debt
proceeds will be applied to prepay the
Loans.
iv. If Borrower or its Subsidiaries sells
or issues equity securities (other than any
issuance or sale to fund expansion capital
expenditures or to prepay Loans in the
event described in paragraph vi below, or
certain intercompany issuance), 100% of the
net equity proceeds will be applied to
prepay the Loans.
v. The proceeds of any termination payment
or similar compensation received in respect
of the termination of any FBO Lease,
management contract or the heliport
contract (each being a Material Contract)
will be applied to prepay the Loans.
vi. If the Debt to EBITDA Ratio (as defined
below) is higher than amounts set out below
Borrower will be required to sweep all cash
to pay down debt until the following ratios
have been achieved. Failure to achieve the
following ratios within two quarters after
the test date shall result in an Event of
Default:
Date of Debt to EBITDA Ratio test Maximum ratio
___________
From the third anniversary of term loan
drawdown To fourth anniversary: 5.5x
From the fourth anniversary of term loan
drawdown To six months prior to Maturity
Date: 5.0x
From six months prior to Maturity Date To
full repayment: 4.5x
In all cases the debt repayment can be made
from cash on hand or additional equity
injection from Equity Investor.
19. Optional Prepayment Prepayments of the Term Loan Facility are
permitted without penalty (subject to the
payment of any break funding costs incurred
including reversing interest rate hedging
transactions) upon at least five (5)
Business Days written notice. Optional
Repayments of the Term Loan Facility must
be made in a minimum amount of $1,000,000
and in increments of $500,000. Amounts
repaid under the Term Loan Facility may not
be redrawn.
DELAYED DRAW ACQUISITION FACILITY
20. Use of Proceeds The Delayed Draw Acquisition Facility is
available to acquire 100% of the equity in
Trajen and will be used to partially
finance the acquisition.
21. Drawdown Advances under the Delayed Draw Acquisition
Facility may be made in a single
distribution up to the full amount of the
Delayed Draw Acquisition Facility.
22. Repayment Advance under the Delayed Draw Acquisition
Facility will be classified as part of the
Term Loan Facility, and, for the avoidance
of doubt, are subject to the same terms and
conditions.
All amounts outstanding under the Term Loan
Facility (including advances made under the
Delayed Draw Acquisition Facility) shall be
due and payable pari passu in full on the
Maturity Date.
23. Termination of Delayed Draw Unused commitments under the Delayed Draw
Acquisition Facility Acquisition Facility will be terminated on
the Facility earlier of (i) the day of a
partial draw down of the Facility or (ii)
December 31, 2006.
24. Amendment Closing Date [May 31, 2006]
REVOLVING CREDIT FACILITY
25. Use of Proceeds Borrower may utilize the Revolving Credit
Facility for Letters of Credit and working
capital requirements.
26. Maturity Date Term Loan Facility Maturity Date.
27. Closing Date December 12, 2005.
28. Drawdown Advances under the Revolving Credit
Facility may be made, and Letters of Credit
may be issued, on a revolving basis up to
the full amount of the Revolving Credit
Facility.
29. Prepayment Prepayments of the Revolving Credit
Facility are permitted without penalty on
any Interest Payment Date upon not less
than three (3) days prior written notice to
the Revolving Loan Lender. Optional
Prepayments of the Revolving Credit
Facility must be made in a minimum amount
of $100,000 and in increments of $50,000.
All amounts outstanding under the Revolving
Credit Facility shall be due and payable in
full on the Maturity Date.
III. THE CREDIT FACILITIES
30. Mandatory Debt Service Interest, Commitment Fee, Agency Fee and
periodic scheduled hedging obligations
payable by the Borrower will be considered
Mandatory Debt Service.
31. Restricted Payments (Lock-Up) Borrower may make quarterly distributions
(within 35 days following each quarterly
payment date) so long as the following
conditions (together the "Distribution
Requirements") have been met:
i. The DSCR for the preceding twelve
month period is 1.50 or higher;
ii. The DSCR for the subsequent twelve
month period is projected to
be 1.50 or higher;
iii. Debt Service Reserve Account is fully
funded;
iv. During the EBITDA Test Period, no
failure of the Applicable Minimum
EBITDA has occurred and no Lock-Up
Period is outstanding;
v. Mandatory Prepayments have been made;
and,
vi. No Default or Event of Default exists.
In the event that distributions are not
permitted due to failure to achieve the
Distribution Requirements, then monies
which would have been distributed absent
such failures will be deposited and trapped
in the Special Reserve Account. Following
such deposit, if on each of the next
succeeding two (2) Distribution Dates the
Distribution Requirements are not
satisfied, then all monies which have been
on deposit in the Special Reserve Account
for at least six (6) months shall be
applied to a Mandatory Prepayment of the
Term Loan Facility. All monies on deposit
in the Distribution Reserve Account (and
not required to make a Mandatory Prepayment
in accordance with the preceding sentence)
shall be available for distribution if the
Distribution Requirements are satisfied for
each of the two Distribution Dates.
32. Applicable EBITDA Minimum At each distribution date during the period
from the Term Loan Disbursement Date
through December 31, 2008 (the "EBITDA Test
Period"), trailing 12 month EBITDA (on a
pro forma basis, as if all facilities had
been owned for the full twelve months)
shall exceed the following levels:
Year Minimum EBITDA
---- --------------
2006 $66.9 million
2007 $71.9 million
2008 $77.5 million
33. Collateral The Facilities are,among other things,
secured by a grant of first priority
security interest in the following property
(subject to acceptable encumbrances):
i. Project Revenues (including all
income, revenues, all interest earned
on deposits and reserves, rates, fees,
charges, rentals, or other receipts
derived by or related to the
operations of the Borrower and its
Subsidiaries, and any revenues
assigned to the Borrower and its
Subsidiaries and proceeds of the sale
or other disposition of all or any
part of the Borrower's or its
Subsidiaries' assets ("Project
Revenues"), project accounts and cash
therein, including the Debt Service
Reserve Account.
ii. (A) Pledge of shares of the Borrower
and (B) as and to the extent permitted
under the terms of the applicable FBO
Leases (unless prohibited under the
terms of the leases without airport
authority consent), pledge of shares
of each of the Subsidiaries of the
Borrower. [If the Borrower is unable
to obtain all relevant consents (and
provided the Borrower makes reasonable
efforts to
obtain such consents) including from
the airport authority of
Brainard-Hartford Airport for the
pledge of shares of the Connecticut
Subsidiaries within 30 days after the
Closing Date, such Subsidiaries will
be directly and wholly-owned by a
single purpose affiliate whose shares
will be pledged.]
iii. Security interest in substantially all
assets of the business, including, all
management contracts and FBO leases,
all other material agreements and
rights to receive Project Revenues
(including fuel contracts, subleases,
service agreements, employment
agreements), licenses, equipment and
machinery, inventory (including jet
fuel) and account receivables and
intellectual property (including the
"Atlantic Aviation" brand name and any
acquired intellectual property)
whether existing at the Closing Date
or thereafter acquired, and the
proceeds thereof. Note that under most
of the FBO leases, prior consent of
the airport authority is required to
collaterally assign the FBO leases,
and the Borrower is obligated to use
commercially reasonable efforts to
obtain consents from the airport
authorities.
iv. Insurance policies and any claims or
proceeds.
34. Hedging Requirements Borrower is required to enter into interest
rate hedges or novation arrangements with
the swap providers from the original
financings at financial close for at least
75% of the Term Loan Facility and Delayed
Draw Acquisition Facility interest rate
exposure, for the remaining term of the
Term Loan Facility and the Delayed Draw
Acquisition Facility. All hedging payments
will rank pari-passu with the Facilities.
35. Representations and Warranties Usual and customary including, among other
things,:
i. Valid existence of Borrower;
ii. Due authorization of Borrower;
iii. Governing law, enforcement of
judgments, validity and admissibility;
iv. No default;
v. Financial statements of Borrower are
in accordance with its books and
records and GAAP;
vi. Funding of pension plans and
compliance with ERISA;
vii. Payment of taxes (subject to customary
contest rights);
viii. No material pending or threatened
uninsured litigation;
ix. Ownership of or leasehold interest in
assets;
x. No breach of environmental or other
laws in any material respect (subject
to customary contest rights);
xi. No other business;
xii. Insurance coverage is in line with
prudent market practice;
xiii. All consents, filings, and licenses
etc. required for conduct of business
have been obtained and are in full
force and effect;
xiv. No encumbrances other than Permitted
Encumbrances;
xv. No indebtedness for borrowed money
other than permitted indebtedness;
xvi. Effectiveness, enforceability of
material agreements;
xvii.Creation, perfection and first
priority of liens (except permitted
liens);
xviii.Solvency;
xix. No Material Adverse Effect;
xx. Due authorization and valid issuance
of all outstanding equity interests of
Borrower and its Subsidiaries;
xxi. Non-deferred payment of purchase price
for aviation fuel at prevailing market
prices at time of delivery; and
xxii. Accuracy of information furnished.
36. Conditions Precedent Usual and customary Conditions Precedent to
closing and to Advances under each of the
Facilities (in each case in a form and
substance satisfactory to the Initial
Lenders) including, but not limited to,:
i. financial model audit of the combined
business;
ii. receipt of the insurance report
prepared by Moore-McNeil;
iii. audited accounts for Trajen's actual
operations for the 12 months ended
December 31, 2005 that are not
materially different from the actual
12 month EBITDA and year-end 2005
balance sheet results identified as
"FY2005A" in the Ernst and Young
accounting report and that contain no
material previously undisclosed
liabilities;
iv. no evidence that Trajen has unfunded
pension liabilities (to be confirmed
by Ernst and Young in their accounting
report);
v. a) Delivery of executed purchase and
sale agreements with respect to
Trajen's acquisition of the Phoenix
and Stockton assets (together the
"Target Assets"), b) confirmation that
Trajen has closed the acquisition of
the Target Assets, in each case on the
terms and conditions set forth in
their respective purchase and sale
agreements, c) Trajen has not waived
any material right or any material
condition set forth within their
respective purchase and sale
agreements, d) each acquisition is
implemented as an asset purchase, and
e) the assets are purchased debt-free,
except for Permitted Indebtedness;
vi. no material adverse change;
vii. no Default or Event of Default has or
shall have occurred and is continuing
and no Default or Event of Default
will result from the acquisition;
viii. evidence that all liabilities
relating to the non-FBO businesses
have been novated to the relevant
company
to be set up by the vendor ("NEWCO")
and that there is no recourse back to
the Borrower for these liabilities;
ix. all third party consents and approvals
received;
x. certification that all conditions of
Share Purchase Agreement have been met
and the business is being acquired
debt free, except for Permitted
Indebtedness;
xi. funding of the Debt Service Reserve
Account;
xii. all pledges of security be in full
force and effect (with local opinions
as necessary), delivery of Subsidiary
Guarantees;
xiii. funding by MIC of $175 million of
incremental cash equity;
xiv. a forecast DSCR of no less than 1.85
times; and
xv. the Share Purchase Agreement obligates
the vendor to pay for all site
remediation expenses at the Aspen FBO,
if any.
37. Undertakings Positive and negative undertakings given by
the Borrower in customary form for
transactions of this nature, including
without limitation appropriate materiality
tests, permitted exceptions and, where
appropriate, de minimis provisions.
38. Event of Default Usual and customary including, among other
things,:
i. Non-payment (with 3 Business Days
grace for interest and other
non-principal amounts);
ii. Failure by the Borrower to comply with
covenants relating to inspections of
the property and offices of the
Borrower and its Subsidiaries, Use of
Proceeds; insurance, a default under
any Subsidiary Guaranty or other
Security Document, legal existence and
good standing of the Borrower and its
Subsidiaries, hedging arrangements,
compliance with legal requirements and
contractual obligations, provision of
Additional Collateral, its obligations
in respect of New Subsidiaries and all
Negative Covenants;
iii. Default by the Borrower or any other
Loan Party in performance or breach of
other obligations or undertakings
under any Project Document including
the Financing Documents not remedied
within a 30-day remedy period for
affirmative covenants (extendable for
longer period granted at
Administrative Agent's discretion and
if remedy cannot be accomplished in 30
days and is being diligently pursued
and extension does not result in a
Material Adverse Effect);
iv. Any representation or warranty made by
the Borrower or any other Loan Party
being untrue in any respect which will
or may have a Material Adverse Effect;
v. Cross-default by the Borrower or any
of its Subsidiaries with respect to
any other debt (other than in respect
of any subordinated debt) subject to
materiality threshold of $500,000;
vi. Bankruptcy and insolvency events
involving the Borrower or any of its
Subsidiaries;
vii. Failure to pay unstayed and uninsured
judgments within 30 days (with
appropriate materiality
qualification);
viii. Change of business;
ix. Any insurance required is terminated,
ceases to be valid or is amended so as
to have a Material Adverse Effect
unless substantially similar cover
(and which is otherwise in compliance
with the Borrower's insurance
covenants) replaces such insurance;
x. Nationalization, condemnation or
government taking without fair value
being paid therefor (so to allow
replacement of such property or
prepayment of the Obligations) that
causes a Material Adverse Effect;
xi. Required authorizations are revoked or
terminated that causes a Material
Adverse Effect;
xii. The Borrower or any of its
Subsidiaries fails to comply with
applicable laws including any
environmental laws;
xiii. Backward DSCR is less than or equal
to 1.20 as of the end of any quarter;
xiv Change of Control;
xv. Failure to perform any Material
Contract (subject to 30 day remedy
period or such longer period granted
at the Administrative Agent's
discretion if remedy cannot be
accomplished in 30 days and is being
diligently pursued and extension does
not result in a Material Adverse
Effect); provided that failure on the
part of a party other than the
Borrower or its Subsidiaries is an
Event of Default only if such failure
has a Material Adverse Effect;
xvi. Inappropriate use of, or withdrawal of
funds from, project accounts by the
Borrower or any party to a Material
Contract;
xvii. Default under the Subsidiary Guaranty
or any other Security Document or
Security Agreement;
xviii.Any Loan Document or any material
term thereof ceases to be in full
force and effect, security ceases to
be effective as first priority
security (subject to Permitted Liens),
or the issuance of any equity
securities are not subject to first
priority, perfected lien;
xix. Any reportable ERISA event;
xx. Any Material Contract ceases to be in
full force and effect, or is
terminated prior to the scheduled
expiration date, or any material
provision thereof is declared null and
void;
xxi. Abandonment of business at any airport
for 30 days; or
xxii. Any event of condition involving
financial impact to the Borrower of
its Subsidiaries in excess of $10
million that could have a Material
Adverse Effect.
An Event of Default in (xv), (xx) or (xxi)
above that affects an FBO or FBOs (other
than the fifteen largest FBO contributors
of EBITDA) may be cured prior to
acceleration of the Loans by prepayment of
that portion of the Term Loan Facility that
corresponds to the highest of the
projected, actual or preceding three-year
average EBITDA
contribution of the affected FBO(s). Such
prepayment will release the affected FBO(s)
from the Financing Documents. This method
of cure may be exercised only once during
the term of the Loans, and only if the
proportional EBITDA contribution of the
affected FBO(s) does not exceed 5% of
aggregate EBITDA.
IV. INTEREST RATE AND FEES
39. Interest Rate The Facilities will bear interest at one,
two, three or six month LIBOR plus the
Applicable Margin.
40. Applicable Margin Years 1 to 3: 1.75%;
Years 4 to 5: 2.00%.
41. Interest Payment Date Interest will be paid in arrears on the
last day of each Interest Period, except in
the case of a six months Interest Period,
where interest will also be paid three
months from the start of the Interest
Period.
42. Interest Period One, two, three or six months.
43. Default Rate Interest Rate plus 2% per annum.
44. Commitment Fee 0.50% per annum of the undrawn portion of
the Facilities, including the Delayed Draw
Acquisition Facility, payable on any
Interest Payment Date. The Commitment Fee
will accrue in arrears from the Closing
Date.
V. FLOW OF FUNDS
45. Priority of Payments Following each Interest Payment Date, after
payment of operating expenses, taxes and
required capital expenditures, and the
retention/refunding of reserves for
contingencies and the payment of items
reasonably expected to be due and payable
prior to the next Interest Payment Date,
the following distributions shall be made
in the following order of priority:
i. Fees and expenses due to the Lead
Arranger and Senior Lenders;
ii. Interest on the Term Loan Facility,
the Revolving Credit Facility and the
Delayed Draw Acquisition Facility, as
well as any hedging obligations;
iii. Mandatory Repayment;
iv. Mandatory Prepayments;
v. any required payments to the Debt
Service Reserve Account;
vi. Optional Repayment and any hedging
termination obligations payable as a
result of such repayment;
vii. any payments (if applicable) to the
Distribution Reserve Account; and
viii. Distributions to Equity Investor.
46. Debt Service Reserve Borrower shall maintain a Debt Service
Reserve Account in an
Account amount equal to six months of Mandatory
Debt Service payable under the Facilities.
The Debt Service Reserve Account shall be
fully funded on the Closing Date.
Alternatively, a letter of credit by a
financial institution rated at least A-/A3
may be posted for the benefit of the Senior
Lenders on the Closing Date.
VI. RATIOS
47. Debt Service Coverage Ratio The Debt Service Coverage Ratio ("DSCR")
for a particular period will be calculated
on a quarterly basis as the ratio of (a)
Net Cash Flow for the twelve-month period
ending on the respective calculation date
to (b) Mandatory Debt Service for the
twelve-month period ending on the
respective calculation date.
48. Debt to EBITDA Ratio The Debt to EBITDA Ratio as of a particular
date will be calculated as the ratio of (a)
total amount of Facilities outstanding to
(b) earnings before interest, tax,
depreciation and amortization.
49. Net Cash Flow "Net Cash Flow" means, in respect of any
period, (a) aggregate Operating Revenues
received during such period plus additional
equity contributions during such period not
used to pay for expansion capital
expenditures, less (b) the operating
expenses, maintenance capital expenditure
and taxes paid during such period, but
excluding any expansion capital
expenditures funded with distributed
amounts or equity contributions or financed
with permitted debt, non-cash charges,
interest and principal payments on the
loans, distributions, investments, costs
paid by insurance proceeds, and employee
phantom stock ownership plan payments..
VII. GENERAL
50. Reporting requirements of the Usual and customary including, among other
Borrower things:
i. Annual audited Financial Statements no
later than 90 days after close of each
fiscal year;
ii. Quarterly Financial Statements no
later than 45 days after close of each
fiscal quarter;
iii. Contemporaneously with delivery of (i)
and (ii): a compliance certificate
stating that an Event of Default has
not occurred, or if an Event of
Default has occurred and is continuing
(and assuming the Administrative Agent
has agreed in its discretion to extend
the cure period), a statement of
proposed cure remedies and a
certificate stating all expansion
capital expenditures during the
previous quarter and the source of
funds for such expenditures;
iv. Monthly operating reports no later
than 30 days after close of each
month;
v. EBITDA certificate no later than 30
days after close of each fiscal
quarter during the EBITDA Test Period,
certifying the EBITDA for the
twelve-month period;
vi. Debt to EBITDA Ratio certificate no
later than 30 days after
close of each fiscal quarter during
the Debt to EBITDA Test Period,
certifying the Debt to EBITDA Ratio
for the twelve-month period; and
vii. DSCR certificate no later than 30 days
after the close of each fiscal
quarter, certifying the DSCR for the
twelve-month period.
51. Governing Law The documentation is governed by New York
law, venue shall be in New York County, and
contains a waiver of jury trial.
April 18, 2006
Macquarie Infrastructure Company Inc.
600 Fifth Avenue, 21st Floor
New York, NY 10020
Attention: Peter Stokes
RE: MACQUARIE INFRASTRUCTURE COMPANY'S ACQUISITION OF TRAJEN HOLDINGS, INC.
Ladies and Gentlemen:
Reference is made to that certain Loan Agreement, dated as of December 12, 2005
(as the same has been amended, supplemented or otherwise modified prior to the
date hereof, the "Existing Credit Agreement"), by and among North America
Capital Holding Company, a Delaware company, as Borrower ("NACH" or the
"Borrower"), the lenders party thereto, and Mizuho Corporate Bank, Ltd.
("Mizuho"), as Administrative Agent (with The Governor and Company of the Bank
of Ireland ("BOI") acting as Documentation Agent, Bayerische Landesbank ("BLB")
acting as Syndication Agent and BOI, BLB and Mizuho, acting as Lead Arrangers
(collectively, in such capacity, the "Lead Arrangers") under such existing
credit facilities (the "Existing Credit Facilities").
You have advised the Lead Arrangers that your subsidiary, Macquarie FBO Holdings
LLC, a Delaware corporation ("MFBO") and the parent company of the Borrower,
intends to (i) enter into a Purchase and Sale Agreement with Trajen Holdings,
Inc. ("Trajen") and its stockholders pursuant to which, among other things, MFBO
will acquire Trajen (the "Acquisition") and (ii) thereafter will assign its
rights and obligations under the Purchase and Sale Agreement to the Borrower.
The purchase price for the Acquisition is $331,050,000, plus the costs to
acquire the Project C acquisition (as defined in the Purchase and Sale
Agreement).
You have also advised the Lead Arrangers that the Acquisition will be funded as
follows: (i) MFBO will make a cash common equity contribution to the Borrower
and (ii) the Existing Credit Agreement will be amended (the "Amended Credit
Agreement") to provide for an increase in the existing term loan facility of up
to $180 million (the "Delayed Draw Acquisition Facility"), 100% of which net
proceeds will be drawn in a one-time borrowing to fund a portion of the
Acquisition purchase price and to pay related costs. The proposed acquisition
financing will also include a $35,000,000 backstop facility the proceeds of
which shall be used to acquire the existing loans at not greater than par value
from any current lender under the Existing Credit Agreement that does not
consent (if such consent is required) to the transactions contemplated by the
Amended Credit Agreement (the "Backstop Facility" and together with the Delayed
Draw Acquisition Facility, the "Additional Credit Facilities" and together with
the Existing Credit Facilities, the "Senior Credit Facilities"). The Acquisition
and financing therefor and all related transactions are hereinafter collectively
referred to as the "Transaction."
In connection with the foregoing, each Lead Arranger is pleased to advise you of
its commitment to provide up to (i) 27.22% ($49.0 million) of the Delayed Draw
Acquisition Facility and (ii) 28.57% ($10.0 million) of the Backstop Facility.
Mizuho shall continue to act as the sole and exclusive Administrative Agent for
the Senior Credit Facilities, all upon and subject to the terms and conditions
set forth in this letter agreement and in the Loan Facilities Term Sheet
attached as Exhibit A hereto and incorporated herein by this reference (the
"Term Sheet" and, together with this letter agreement, this "Commitment
Letter"). Each of the Lead Arrangers is further pleased to advise you of its
willingness, as a lead arranger for the Additional Credit Facilities, to form a
syndicate of financial institutions and institutional lenders (including the
Lead Arrangers) (collectively, the "Lenders") in consultation with you and with
your prior written consent (not to be unreasonably withheld) for the Additional
Credit Facilities. All capitalized terms used and not otherwise defined herein
shall have the same meanings as specified therefor in the Term Sheet.
The commitment of each Lead Arranger hereunder and the undertaking of each Lead
Arranger to provide the services described herein are subject to (i) the
Borrower having accepted from each other Lead Arranger and Macquarie Bank
Limited aggregate commitments for the remaining 72.78% ($131.0 million) of the
Delayed Draw Acquisition Facility and 71.43% ($25.0 million) of the Backstop
Facility on terms identical to those of such Lead Arranger, (ii) the
satisfaction of each of the conditions precedent specified in the Term Sheet in
a manner acceptable to such Lead Arranger, and (iii) the negotiation, execution
and delivery of definitive documentation (the "Credit Documentation") for the
Additional Credit Facilities consistent with the Term Sheet and otherwise
satisfactory to such Lead Arranger.
The Lead Arrangers intend to commence syndication of the Additional Credit
Facilities promptly upon execution of the Purchase and Sale Agreement. You agree
to actively assist, and to cause the Borrower to actively assist, the Lead
Arrangers in achieving a syndication of the Additional Credit Facilities that is
satisfactory to the Lead Arrangers and you. Such assistance shall include (a)
your providing and causing your advisors to provide the Lead Arrangers and the
other Lenders upon request with all information reasonably deemed necessary by
the Lead Arrangers to complete syndication, including, but not limited to,
information and evaluations prepared by you, the Borrower and your and their
advisors, or on your or their behalf, relating to the Transaction, (b) your
assistance in the preparation of an Information Memorandum to be used in
connection with the syndication of the Additional Credit Facilities, (c) using
your commercially reasonable efforts to ensure that the syndication efforts of
the Lead Arrangers benefit materially from your existing lending relationships
and the existing banking relationships of the Borrower, and (d) otherwise
assisting the Lead Arrangers in their syndication efforts, including by making
your officers and advisors and the officers and advisors of the Borrower
available from time to time to attend and make presentations regarding the
business and prospects of the Borrower at one or more meetings of prospective
Lenders.
It is understood and agreed that the Lead Arrangers will manage and control all
aspects of the syndication in consultation with you, including decisions as to
the selection of prospective Lenders (with your consent, not to be unreasonably
withheld or delayed) and any titles offered to proposed Lenders, when
commitments will be accepted and the final allocations of the commitments among
the Lenders. It is understood that no Lender participating in the Additional
Credit Facilities will receive compensation from you in order to obtain its
commitment, except on the terms contained herein in the Term Sheet.
You agree that until the earlier of (a) the date on which general syndication of
the Additional Credit Facilities has been completed and each Lead Arranger has
reduced its commitment under the Senior Credit Facilities to a maximum final
hold of $60 million ("Successful Syndication") and (b) the date that is 90
calendar days after the launch of syndication (to be commenced no later than May
1, 2006), unless otherwise agreed to by the Lead Arrangers, there shall be no
competing issues of debt securities by, or commercial bank facilities to, you,
the Borrower or any of your or its respective subsidiaries or affiliates for the
purpose of acquiring fixed based operations, airport management or similar
airport service businesses (it being understood that competing issues would not
include debt securities or commercial bank facilities currently outstanding).
The foregoing sentence shall not limit the ability of you or any affiliate to
restructure or amend any outstanding debt facility, which in the ordinary
course, becomes due and owing at its scheduled maturity (provided that such
restructuring, consent or amendment does not increase the aggregate amount of
loans or commitments thereunder).
At any time after 45 days after the launch of syndication of the Additional
Credit Facilities to new potential lenders that are not currently a Lender to
the Existing Credit Facilities, the Lead Arrangers shall be entitled (unless
Successful Syndication has been achieved within such 45-day period), after
consultation with you, to increase the Underwriting Fee payable in respect of
the Additional Credit Facilities by fifteen (15) basis points if the Lead
Arrangers determine in their sole discretion that such changes are advisable in
order to enhance the prospects of a Successful Syndication; provided, however,
that the Lead Arrangers shall not exercise market flex with respect to the
Underwriting Fee unless the Lead Arrangers would be required to pay to potential
lenders upfront participation fees aggregating an amount that is in excess of 75
basis points in order to achieve Successful Syndication. You agree to enter
into, and to cause your affiliates to enter into, such amendments to the Credit
Documentation as may be necessary or reasonably requested by the Lead Arrangers
to reflect such change to the Senior Credit Facilities made in furtherance of
the immediately preceding sentence.
You hereby represent, warrant and covenant that (a) all information, other than
Projections (as defined below), which has been or is hereafter made available to
the Lead Arrangers or the Lenders by you or any of your representatives (or on
your or their behalf) or by the Borrower or any of its subsidiaries or
representatives (or on their behalf) in connection with any aspect of the
Transaction (the "Information") is and will be complete and correct in all
material respects and does not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
contained therein not misleading in light of the circumstances under which they
were made and (b) all financial projections concerning the Borrower that have
been or are hereafter made available to the Lead Arrangers or the Lenders by you
or any of your representatives (or on your or their behalf) or by the Borrower
or any of its subsidiaries or representatives (or on their behalf) (the
"Projections") have been or will be prepared in good faith based upon reasonable
assumptions (it is understood and acknowledged, however, that such Projections
are based upon a number of estimates and assumptions and are subject to
significant business, economic and competitive uncertainties and contingencies
and that, accordingly, no assurances are given and no representations,
warranties or covenants are made that any of the assumptions are correct, that
such Projections will be achieved or that the
forward-looking statements expressed in such Projections will correspond to
actual results). You agree to furnish us with such Information and Projections
as we may reasonably request and to supplement the Information and the
Projections from time to time until the date of the initial borrowing under the
Additional Credit Facilities (the "Closing Date") so that the representations,
warranties and covenants in the immediately preceding sentence are correct on
the Closing Date. In issuing this commitment and in arranging and syndicating
the Additional Credit Facilities, the Lead Arrangers are and will be using and
relying on the Information.
You agree to indemnify and hold harmless each Lead Arranger, each Lender and
each of its affiliates and their respective officers, directors, employees,
agents, advisors and other representatives (each an "Indemnified Party") from
and against (and will reimburse each Indemnified Party as the same are incurred
for) any and all claims, damages, losses, liabilities and expenses (including,
without limitation, the reasonable fees, disbursements and other charges of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense in connection therewith) (a) any
aspect of the Transaction or any similar transaction and any of the other
transactions contemplated thereby and (b) the Senior Credit Facilities and any
other financings, or any use made or proposed to be made with the proceeds
thereof, except to the extent such claim, damage, loss, liability or expense is
found in a final, nonappealable judgment by a court of competent jurisdiction to
have resulted from such Indemnified Party's gross negligence or willful
misconduct. You also agree that no Indemnified Party shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to you or your
subsidiaries or affiliates or to your or their respective equity holders or
creditors arising out of, related to or in connection with any aspect of the
Transaction, except to the extent of direct, as opposed to special, indirect,
consequential or punitive, damages determined in a final non-appealable judgment
by a court of competent jurisdiction to have resulted from such Indemnified
Party's gross negligence or willful misconduct. It is further agreed that each
Lead Arranger shall only have liability to you (as opposed to any other person),
that each Lead Arranger shall be liable solely in respect of its own commitments
to the Senior Credit Facilities on a several, and not joint, basis with any
other Lender and that such liability shall only arise to the extent damages have
been caused by a breach of such Lead Arranger's obligations hereunder to
negotiate in good faith definitive documentation for the Additional Credit
Facilities on the terms set forth herein as determined in a final non-appealable
judgment by a court of competent jurisdiction. In the event that any claim or
demand by a third party for which you may be required to indemnify an
Indemnified Party hereunder (a "Claim") is asserted against or sought to be
collected from any Indemnified Party by a third party, such Indemnified Party
shall as promptly as practicable notify you in writing of such Claim, and such
notice shall specify (to the extent known) in reasonable detail the amount of
such Claim and any relevant facts and circumstances relating thereto; provided,
however, that any failure to give such prompt notice or to provide any such
facts and circumstances shall not constitute a waiver of any rights of the
Indemnified Party, except to the extent that the rights of the Indemnifying
Party are actually materially prejudiced thereby.
You shall be entitled to appoint counsel of your choice at your expense to
represent an Indemnified Party in any action for which indemnification is sought
(in which case you shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by that Indemnified Party except as set forth
below); provided, however, that such counsel shall be
satisfactory to such Indemnified Party. Notwithstanding your election to appoint
counsel to represent an Indemnified Party in any action, such Indemnified Party
shall have the right to employ separate counsel (including local counsel, but
only one such counsel in any jurisdiction in connection with any action), and
you shall bear the reasonable fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by you to represent the Indemnified Party would
present such counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the Indemnified Party
and you and the Indemnified Party shall have reasonably concluded that there may
be legal defenses available to it and/or other Indemnified Parties which are
different from or additional to those available to you; (iii) you shall not have
employed counsel to represent the Indemnified Party within a reasonable time
after notice of the institution of such action; or (iv) you shall authorize the
Indemnified Party to employ separate counsel at your expense. You shall not be
liable for any settlement or compromise of any action or claim by an Indemnified
Party affected without your prior written consent, which consent shall not be
unreasonably withheld or delayed.
At the earlier of the Closing Date or the termination of this Commitment Letter,
you agree to reimburse or cause the Borrower to reimburse the Lead Arrangers for
all reasonable out-of-pocket costs and expenses (including, but not limited to,
expenses relating to due diligence investigations, consultants' and other
professional and advisory fees, travel expenses and fees, disbursements and
reasonable charges of counsel) incurred by the Lead Arrangers in connection with
preparing, negotiating and/or executing the Credit Documentation and this
Commitment Letter and term sheets, and carrying out the syndication of the
Additional Credit Facilities, in each case whether or not incurred before or
after the date of this Commitment Letter.
All payments to be made under this Commitment Letter shall be paid in U.S.
dollars and in immediately available, freely transferable cleared funds to such
account with such bank as each Lead Arranger notifies to the Company, and shall
be paid without (and free and clear of any deduction for) set-off or
counter-claim and without any deduction or withholding for or on account of tax
(a "Tax Deduction") unless a Tax Deduction is required by law. If a Tax
Deduction is required by law to be made, you shall pay such tax and the amount
of the payment due shall be increased to an amount which (after making any Tax
Deduction) leaves an amount equal to the payment which would have been due if no
Tax Deduction had been required.
This Commitment Letter and the Term Sheet and the contents hereof and thereof
are confidential and, except for the disclosure hereof or thereof on a
confidential basis to your accountants, attorneys and other professional
advisors retained by you in connection with the Transaction, Trajen, or as
otherwise required by law, may not be disclosed in whole or in part to any
person or entity without our prior written consent; provided, however, it is
understood and agreed that you may disclose this Commitment Letter (including
the Term Sheet) but not the Fee Letter attached as Exhibit B to this Commitment
Letter after your acceptance of this Commitment Letter, in filings with the
Securities and Exchange Commission and other applicable regulatory authorities
and stock exchanges. The Lead Arrangers shall be permitted to use information
related to the syndication and arrangement of the Additional Credit Facilities
in connection with marketing, press releases or other transactional
announcements or updates provided to investor or trade publications; provided,
that any press release or public announcement shall not be made without your
prior written consent, not to be unreasonably withheld or delayed. The Lead
Arrangers hereby notify you that pursuant to the requirements of the USA Patriot
Act, Title III of Pub. L.
107-56 (signed into law October 26, 2001) (the "Act"), they are required to
obtain, verify and record information that identifies you, which information
includes your name and address and other information that will allow the Lead
Arrangers to identify you in accordance with the Act.
You acknowledge that each Lead Arranger or its affiliates may be providing
financing or other services to parties whose interests may conflict with yours.
Each Lead Arranger agrees that it will not furnish confidential information
obtained from you to any of its other customers and that it will treat
confidential information relating to you, the Borrower and your and their
respective affiliates with the same degree of care as it treats its own
confidential information. Each Lead Arranger further advises you that it will
not make available to you confidential information that it has obtained or may
obtain from any other customer. In connection with the services and transactions
contemplated hereby, you agree that each Lead Arranger is permitted to access,
use and share with any of its bank or non-bank affiliates, agents, advisors
(legal or otherwise) or representatives any information concerning you, the
Borrower or any of your or its respective affiliates that is or may come into
the possession of such Lead Arranger or any of such affiliates.
The provisions of the immediately preceding eleven paragraphs shall remain in
full force and effect regardless of whether any definitive documentation for the
Additional Credit Facilities shall be executed and delivered, and
notwithstanding the termination of this Commitment Letter or any commitment or
undertaking of the Lead Arrangers hereunder; provided, however, that you shall
be deemed released of your reimbursement and indemnification obligations
hereunder upon the execution of all definitive documentation for the Additional
Credit Facilities and the initial extension of credit thereunder.
This Commitment Letter may be executed in counterparts which, taken together,
shall constitute an original. Delivery of an executed counterpart of this
Commitment Letter by telecopier, e-mail or facsimile shall be effective as
delivery of a manually executed counterpart thereof.
This Commitment Letter shall be governed by, and construed in accordance with,
the laws of the State of New York. Each of you and the Lead Arrangers hereby
irrevocably waives any and all right to trial by jury in any action, proceeding
or counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Commitment Letter (including, without limitation, the Term
Sheet), the Transaction and the other transactions contemplated hereby and
thereby or the actions of the Lead Arrangers in the negotiation, performance or
enforcement hereof. The commitments and undertakings of the Lead Arrangers may
be terminated by us if you fail to perform your obligations under this
Commitment Letter on a timely basis.
This Commitment Letter, together with the Term Sheet, embodies the entire
agreement and understanding among the Lead Arrangers, you, and your affiliates
with respect to the Additional Credit Facilities and supersedes all prior
agreements and understandings relating to the specific matters hereof. However,
please note that the terms and conditions of the commitment and undertakings of
the Lead Arrangers hereunder are not limited to those set forth herein or in the
Term Sheet. Those matters that are not covered or made clear herein or in the
Term Sheet are subject to mutual agreement of the parties. No party has been
authorized by the Lead Arrangers to make any oral or written statements that are
inconsistent with this Commitment Letter.
This Commitment Letter is not assignable by you without our prior written
consent and is intended to be solely for the benefit of the parties hereto and
the Indemnified Parties. This Commitment Letter shall not be amended or modified
except in writing signed by all parties hereto.
This Commitment Letter and all commitments and undertakings of the Lead
Arrangers hereunder will expire at 5:00 p.m. (New York City time) on April 28,
2006 unless you execute this Commitment Letter and return it to us prior to that
time. Thereafter, all commitments and undertakings of the Lead Arrangers
hereunder will expire on the earlier of (a) 60 days after the date of this
letter, unless the definitive documents for the financing of the Transaction
have been executed and delivered, and (b) the acceptance by you or any of your
affiliates of an offer for all or any substantial part of the capital stock or
property and assets of the Borrower and their subsidiaries other than as part of
the Transaction. In consideration of the time and resources that the Lead
Arrangers will devote to the Additional Credit Facilities, you agree that, until
such expiration, you will not solicit, initiate, entertain or permit, or enter
into any discussions in respect of, any offering, placement or arrangement of
any competing senior credit facilities for the Borrower and their subsidiaries
with respect to the matters addressed in this letter.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
We are pleased to have the opportunity to work with you in connection with this
important financing.
Very truly yours,
MIZUHO CORPORATE BANK, LTD.
By: /s/ Takeo Kada
------------------------------------
Name: Takeo Kada
Title: Deputy General Manager
ACCEPTED AND AGREED TO
AS OF THE DATE FIRST ABOVE WRITTEN:
MACQUARIE INFRASTRUCTURE COMPANY INC.
(D/B/A MACQUARIE INFRASTRUCTURE COMPANY (US))
By: /s/ Peter Stokes
---------------------------------
Name: Peter Stokes
Title: Chief Executive Officer
We are pleased to have the opportunity to work with you in connection with this
important financing.
Very truly yours,
THE GOVERNOR AND COMPANY OF
BANK OF IRELAND
By: /s/ A.K.C. Hartley
------------------------------------
Name: A.H.C. Hartley
Title: Head of Infrastructure Project
Finance
By: /s/ [illegible]
------------------------------------
Name: [illegible]
Title: [illegible]
ACCEPTED AND AGREED TO
AS OF THE DATE FIRST ABOVE WRITTEN:
MACQUARIE INFRASTRUCTURE COMPANY INC.
(D/B/A MACQUARIE INFRASTRUCTURE COMPANY (US))
By: /s/ Peter Stokes
---------------------------------
Name: Peter Stokes
Title: Chief Executive Officer
We are pleased to have the opportunity to work with you in connection with this
important financing.
Very truly yours,
BAYERISCHE LANDESBANK, NEW YORK BRANCH
By: /s/ Thomas Augustin
------------------------------------
Name: Thomas Augustin
Title: Vice President
By: /s/ George J. Schnept
------------------------------------
Name: George J. Schnept
Title: Vice President
ACCEPTED AND AGREED TO
AS OF THE DATE FIRST ABOVE WRITTEN:
MACQUARIE INFRASTRUCTURE COMPANY INC.
(D/B/A MACQUARIE INFRASTRUCTURE COMPANY (US))
By: /s/ Peter Stokes
---------------------------------
Name: Peter Stokes
Title: Chief Executive Officer
EXHIBIT A
INDICATIVE SUMMARY OF TERMS AND CONDITIONS
APRIL 18, 2006
The terms and conditions contained in the documents in respect of the
existing Loan Agreement will apply equally to this transaction, subject only to
those variations and amendments which are expressly identified in this
Indicative Summary of Terms and Conditions. Capitalized expressions in this
document which are not otherwise defined are to be attributed the same meaning
as provided in Appendix A to the existing Loan Agreement.
II. THE PARTIES
1. Borrower North America Capital Holding Company ("NACH")
whose sole business is the ownership of entities
("Project Entities") that operate Fixed Base
Operations (FBO's), and manage airports, and is
seeking to acquire Trajen Holdings, Inc.
("Trajen").
2. Purpose To amend the existing $305 million Loan Agreement
dated December 12, 2005 (the "existing Loan
Agreement") and to provide an additional $180
million of term loan debt needed to fund a portion
of the acquisition price of Trajen and related
acquisition costs.
3. Equity Investor Macquarie FBO Holdings LLC, a Delaware limited
liability company, indirectly 100% owned by
Macquarie Infrastructure Company Trust, a New York
Stock Exchange listed entity ("MIC").
4. Lead Arrangers Mizuho Corporate Bank, Ltd, Bayerische Landesbank,
New York Branch and Bank of Ireland
5. Co Lead Arranger Macquarie Bank Limited ("MBL")
6. Syndication Agent Bayerische Landesbank, New York Branch
7. Administrative Agent Mizuho Corporate Bank, Ltd.
8. Documentation Agent Bank of Ireland
9. Senior Lenders Lead Arrangers and other banks or financial
institutions to whom the Facilities may be
syndicated.
10. Initial Lenders Each Lead Arranger and each Co-Lead Arranger
11. Revolving Loan Lender Mizuho Corporate Bank, Ltd.
12. Legal Advisor Orrick, Herrington & Sutcliffe LLP
13. Other Consultants Technical: Leigh Fisher Associates (a division of
Jacobs Consulting Inc.)
Environmental: Environmental Strategies Consulting
Insurance: Moore-McNeil, LLC
II. THE FACILITIES
14. The Facilities The Facilities will consist of the following:
(iv) Term Loan Facility of $300,000,000, 100% of
which was drawn on December 14, 2005, plus
amounts funded under the Delayed Draw
Acquisition Facility;
(v) Delayed Draw Acquisition Facility up to
$180,000,000.
(vi) Revolving Credit Facility of $5,000,000.
The Delayed Draw Acquisition Facility will be used
to partially finance the acquisition of Trajen.
TERM LOAN FACILITY
15. Use of Proceeds The Term Loan was used to refinance existing debt
of NACH and MANA, pay for any costs and expenses
associated with the borrowing and finance a
distribution to Equity Investor. 100% of the Term
Loan Proceeds were drawn on December 14, 2005.
16. Term Loan Maturity Date December 12, 2010.
17. Closing Date December 12, 2005
DELAYED DRAW ACQUISITION
FACILITY
18. Use of Proceeds The Delayed Draw Acquisition Facility is available
to acquire 100% of the equity in Trajen.
19. Drawdown Advances under the Delayed Draw Acquisition
Facility may be made in a single distribution up
to the full amount of the Delayed Draw Acquisition
Facility.
20. Repayment Advance under the Delayed Draw Acquisition
Facility will be
classified as part of the Term Loan Facility, and,
for the avoidance of doubt, are subject to the
same repayment terms and conditions as those
applicable to the Term Loan Facility.
All amounts outstanding under the Term Loan
Facility (including advances made under the
Delayed Draw Acquisition Facility) shall be due
and payable pari passu in full on the Maturity
Date.
21. Termination of Delayed Unused commitments under the Delayed Draw
Draw Acquisition Acqusition Facility will be terminated on the
Facility earlier of (i) the day of a partial draw down of
the Facility or (ii) December 31, 2006.
22. Amendment Closing Date [May 31, 2006]
REVOLVING CREDIT FACILITY
23. Use of Proceeds Borrower may utilize the Revolving Credit Facility
for Letters of Credit and working capital
requirements.
24. Maturity Date Term Loan Maturity Date.
25. Closing Date December 12, 2005.
26. Drawdown Advances under the Revolving Credit Facility may
be made, and Letters of Credit may be issued, on a
revolving basis up to the full amount of the
Revolving Credit Facility.
27. Prepayment Prepayments of the Revolving Credit Facility are
permitted without penalty on any Interest Payment
Date upon not less than three (3) days prior
written notice to the Revolving Loan Lender.
Optional Prepayments of the Revolving Credit
Facility must be made in a minimum amount of
$100,000 and in increments of $50,000. All amounts
outstanding under the Revolving Credit Facility
shall be due and payable in full on the Maturity
Date.
IV. THE CREDIT FACILITIES
28. Mandatory Prepayment The Borrower shall promptly make Mandatory
Prepayments in the following situations. The
Mandatory Prepayments shall be applied to the
Loans, including any amounts added to the Term
Loan Facility due to draws under the Delayed Draw
Acquisition Facility.
i. If any insurance or condemnation proceeds
(other than business interruption insurance) are
not used for reconstruction, Borrower will prepay
that amount of the Loans, without penalty, subject
to appropriate materiality tests.
ii. If, during any fiscal year, any net proceeds
from a sale of the
Borrower's or its subsidiary's property that is
not used to purchase replacement assets exceeds
$250,000, Borrower will prepay the Loans in the
amount of such excess.
iii. If Borrower or its subsidiaries incurs debt
for borrowed money that is not permitted
indebtedness, 100% of the net debt proceeds will
be applied to prepay the Loans.
iv. If Borrower or its subsidiaries sells or
issues equity securities (other than any issuance
or sale to fund expansion capital expenditures or
to prepay Loans in the event described in
paragraph vi below, or certain intercompany
issuances), 100% of the net equity proceeds will
be applied to prepay the Loans.
v. The proceeds of any termination payment or
similar compensation received in respect of the
termination of any FBO Lease, management contract
or the heliport contract will be applied to prepay
the Loans.
vi. If one or more Distribution Requirements are
not satisfied for two consecutive Distribution
Dates following a deposit of Excess Cash Flow to
the Special Reserve Account as described in
Section 31 below.
vii. If, during the Leverage Ratio Test Period,
the Debt to EBITDA Ratio (as defined below) is
higher than amounts set out below Borrower will be
required to sweep all cash to pay down the Loans
until the following ratios have been achieved.
Failure to achieve the following ratios within two
quarters after the test date shall result in an
Event of Default:
Date of Debt to EBITDA Ratio test Maximum ratio
--------------------------------- -------------
From the third anniversary of
term loan drawdown To fourth
anniversary: 5.5x
From the fourth anniversary of term
loan drawdown To six months prior
to Maturity Date: 5.0x
From six months prior to Maturity
Date
To full repayment: 4.5x
In all cases the debt repayment can be made from
cash on hand or additional equity injection from
Equity Investor.
29. Optional Prepayment Prepayments of the Term Loan Facility are
permitted without penalty (subject to the payment
of any break funding costs incurred, including
reversing interest rate hedging transactions) upon
at least five Business Days written notice.
Optional Prepayments of the Term Loan Facility
must be made in a minimum amount of $1,000,000 and
in increments of $500,000. Amounts repaid under
the Term Loan Facility may not be redrawn.
30. Mandatory Debt Service Interest, Commitment Fee, Agency Fee and periodic
scheduled hedging obligations payable by the
Borrower will be considered Mandatory Debt
Service.
31. Restricted Payments Borrower may make quarterly distributions (within
(Lock-Up) 35 days following each quarterly payment date) so
long as the following conditions (together the
"Distribution Requirements") have been met:
i. The DSCR for the preceding twelve month
period is 1.50 or higher;
ii. The DSCR for the subsequent twelve month
period is projected to be 1.50 or higher;
iii. Debt Service Reserve Account is fully funded;
iv. During the EBITDA Test Period, no failure of
the Applicable Minimum EBITDA has occurred
and no Lock-Up Period is outstanding;
v. Mandatory Prepayments have been made; and,
vi. No Default or Event of Default exists.
In the event that distributions are not permitted
due to failure to achieve the Distribution
Requirements, then monies which would have been
distributed absent such failures will be deposited
and trapped in the Special Reserve Account.
Following such deposit, if on each of the next
succeeding two (2) Distribution Dates the
Distribution Requirements are not satisfied, then
all monies which have been on deposit in the
Special Reserve Account for at least six (6)
months shall be applied to a Mandatory Prepayment
of the Term Loan Facility. All monies on deposit
in the Special Reserve Account (and not required
to make a Mandatory Prepayment in accordance with
the preceding sentence) shall be available for
distribution if the Distribution Requirements are
satisfied for each of the succeeding two
Distribution Dates.
32. Applicable EBITDA At each distribution date during the period from
Minimum the Term Loan Disbursement Date through December
31, 2008 (the "EBITDA Test Period"), trailing 12
month EBITDA (on a pro forma basis, as if all
facilities had been owned for the full twelve
months) shall exceed the following levels:
Year Minimum EBITDA
---- --------------
2006 $66.9 million
2007 $71.9 million
2009 $77.5 million
33. Collateral The Facilities are, among other things, secured by
a grant of first priority security interest in the
following property (subject to acceptable
encumbrances):
i. Project Revenues (including all income,
revenues, all interest
earned on deposits and reserves, rates, fees,
charges, rentals, or other receipts derived
by or related to the operations of the
Borrower and its subsidiaries, and any
revenues assigned to the Borrower and its
subsidiaries and proceeds of the sale or
other disposition of all or any part of the
Borrower's or its subsidiaries' assets
("Project Revenues"), project accounts and
cash therein, including the Debt Service
Reserve Account.
ii. (A) Pledge of shares of the Borrower and (B)
as and to the extent permitted under the
terms of the applicable FBO Leases and other
airport services contracts, pledge of shares
of each of the subsidiaries of the Borrower.
[The Borrower will make all reasonable
efforts to obtain the consent of the airport
authorities to the extent such consent is
required under the applicable FBO lease or
airport management contract to pledge the
subsidiary's shares. If, despite such
efforts, the Borrower is unable to obtain all
relevant consents, including from the airport
authority of Brainard-Hartford Airport for
the pledge of shares of the Connecticut
subsidiaries within 30 days after the
Amendment Closing Date, such subsidiaries
will be directly and wholly-owned by a single
purpose affiliate whose shares will be
pledged.]
iii. Security interest in substantially all assets
of the business, including, all management
contracts and FBO leases, all other material
agreements and rights to receive Project
Revenues (including fuel contracts,
subleases, service agreements, employment
agreements), licenses, equipment and
machinery, inventory (including jet fuel) and
account receivables and intellectual property
(including the "Atlantic Aviation" brand
name, the "Trajen" trademark and any other
acquired intellectual property) whether
existing at the Amendment Closing Date or
thereafter acquired, and the proceeds
thereof. Note that under most of the FBO
leases, prior consent of the airport
authority is required to collaterally assign
the FBO leases, and the Borrower is obligated
to use commercially reasonable efforts to
obtain consents from the airport authorities.
v. Insurance policies and any claims or
proceeds.
34. Hedging Requirements Borrower is required to enter into interest rate
hedges or novation arrangements with the swap
providers from the original financings at
financial close for at least 100% of the Term Loan
Facility and Delayed Draw Acquisition Facility
interest rate exposure, for the remaining term of
the Term Loan Facility and Delayed Draw
Acquisition Facility. All hedging payments will
rank pari-passu with the Facilities.
35. Representations and Includes:
Warranties
i. Valid existence of Borrower;
ii. Due authorization of Borrower;
iii. Governing law, enforcement of judgments,
validity and
admissibility;
iv. No default;
v. Consolidated financial statements of Borrower
and its subsidiaries are in accordance with
its books and records and GAAP;
vi. Funding of pension plans and compliance with
ERISA;
vii. Payment of taxes (subject to customary
contest rights);
viii. No material pending or threatened uninsured
litigation;
ix. Ownership of or leasehold interest in assets;
x. No breach of environmental or other laws in
any material respect (subject to customary
contest rights);
xi. No other business;
xii. Insurance coverage is in line with prudent
market practice;
xiii. All consents, filings, and licenses etc.
required for conduct of business have been
obtained and are in full force and effect;
xiv. No indebtedness for borrowed money other than
permitted indebtedness;
xv. Effectiveness, enforceability of material
agreements;
xvi. Creation, perfection and first priority of
liens (except permitted liens);
xvii. Solvency;
xviii. No Material Adverse Effect;
xix. Due authorization and valid issuance of all
outstanding equity interests of Borrower and
its subsidiaries;
xx. Non-deferred payment of purchase price for
aviation fuel at prevailing market prices at
time of delivery; and
xxi. Accuracy of information furnished.
36. Conditions Precedent Usual and customary Conditions Precedent to
signing of the amended loan documentation include,
but are not limited to, delivery of legal opinions
satisfactory to Lead Arrangers, delivery of
satisfactory executed Purchase and Sale Agreement
("PSA") between NACH and the shareholders of
Trajen, payment of all Amendment Fees (as set
forth in the fee letter attached as Exhibit B to
the Commitment Letter), no Default or Event of
Default shall have occurred and be continuing and
execution, delivery of consultants' reports and
audited financial statements of Trajen and its
subsidiaries that are not materially different
from those received by the Lead Arrangers as of
the date of the Commitment Letter, and delivery of
documentation satisfactory to the Lead Arrangers.
Conditions Precedent to Advances under the Delayed
Draw Acquisition Facility, include but are not
limited to, delivery of revised base case
projections, operating budget and pro forma
balance sheet reflecting the contemplated
acquisition, in a form consistent with those
already provided to the Lead Arrangers
and with financial projections not materially
different from the financial model dated March 31,
2006 delivered to the Lead Arrangers, payment of
the Underwriting Fees and Arrangement Fees (each
as set forth in the fee letter attached as Exhibit
B to the Commitment Letter), all third party
consents and approvals, certification that all
conditions of PSA have been met, evidence of
payment of acquisition purchase price and
repayment in full of all existing indebtedness of
Trajen and all related liens released, funding of
the debt service reserve, all pledges of security
in Trajen and its subsidiaries' assets and equity
interests be in full force and effect (with local
opinions as necessary), executed joinder
agreements to the Subsidiary Guarantee and
Contribution Agreement by Trajen and its
subsidiaries, all representations and warranties
shall be true, correct and accurate, absence of
certain changes (as defined in the PSA), delivery
of legal opinions satisfactory to Lead Arrangers,
no Default or Event of Default shall have occurred
and be continuing and no Default or Event of
Default will result from the acquisition, no
Material Adverse Effect (as such term is defined
in the PSA) arising out of the assets or property
(owned or leased), contracts, governmental
authorizations, labor events or business
relationships of Trajen and its subsidiaries has
occurred or is reasonably expected to occur since
the signing of the amended loan documentation, and
funding by MIC of a minimum of $175 million of
equity.
37. Undertakings Positive and negative undertakings given by the
Borrower as set forth in the existing Loan
Agreement and in customary form for transactions
of this nature with appropriate adjustments being
made to account for the addition of the Delayed
Draw Acquisition Facility, including without
limitation appropriate materiality tests,
permitted exceptions and, where appropriate, de
minimis provisions.
38. Event of Default Includes:
i. Non-payment (with 3 Business Days grace for
interest and other non-principal amounts);
ii. Failure by the Borrower to comply with
covenants relating to inspections of the
property and offices of the Borrower and its
Subsidiaries, Use of Proceeds; insurance, a
default under any Subsidiary Guaranty or
other Security Document, legal existence and
good standing of the Borrower and its
Subsidiaries, hedging arrangements,
compliance with legal requirements and
contractual obligations, provision of
Additional Collateral, its obligations in
respect of New Subsidiaries and all Negative
Covenants;
iii. Default by the Borrower or any other Loan
Party in performance or breach of other
obligations or undertakings under any Loan
Document not remedied within a 30-day
remedy period for affirmative covenants
(extendable for longer period granted at
Administrative Agent's discretion if remedy
cannot be accomplished in 30 days and is
being diligently pursued and extension does
not result in a Material Adverse Effect);
iv. Any representation or warranty made by the
Borrower or any other Loan Party being untrue
in any respect which will or may have a
Material Adverse Effect;
v. Cross-default by the Borrower or any of its
Subsidiaries with respect to any other debt
(other than in respect of any subordinated
debt) subject to materiality threshold of
$500,000;
vi. Bankruptcy and insolvency events involving
the Borrower or any of its Subsidiaries;
vii. Failure of Borrower or its subsidiaries to
pay unstayed and uninsured judgments in
excess of $500,000 within 30 days;
viii. Change of business;
ix. Any insurance required is terminated, ceases
to be valid or is amended so as to have a
Material Adverse Effect unless substantially
similar cover (and which is otherwise in
compliance with the Borrower's insurance
covenants) replaces such insurance;
x. Nationalization, condemnation or government
taking without fair value being paid therefor
(so to allow replacement of such property or
prepayment of the Obligations);
xi. Required authorizations are revoked or
terminated (unless reinstated within 10 days
or such longer period as necessary so long as
such event could not reasonably be expected
to have a Material Adverse Effect and
Borrower is diligently pursuing
reinstatement);
xii. The Borrower or any of its Subsidiaries fails
to comply with applicable laws, including all
applicable environmental laws, that will
result in a Material Adverse Effect;
xiii. Backward DSCR is less than or equal to 1.20
as of the end of any quarter;
xiv. Change of Control;
xv. Failure to perform any Material Contract
(subject to 30 day remedy period or such
longer period granted at the Administrative
Agent's discretion if remedy cannot be
accomplished in 30 days and is being
diligently pursued and extension does not
result in a Material Adverse Effect);
provided that failure on the part of a party
other than the Borrower or its subsidiaries
is an Event of Default only if such failure
has Material Adverse Effect;
xvi. Inappropriate use of, or withdrawal of funds
from, project accounts by the Borrower or any
party to a Material Contract;
xvii. Default under the Subsidiary Guaranty or any
other Security Document;
xviii. Any Loan Document ceases to be in full
force and effect; or Security ceases to be
effective as first priority security
(subject to Permitted Liens); or the
issuance of any equity securities are not
subject to first priority, perfected lien;
xix. Any reportable ERISA event;
xx. Any Material Contract ceases to be in full
force and effect, or is terminated prior to
the scheduled expiration date, or any
material provision thereof is declared null
and void;
xxi. Abandonment of business at any airport for 30
days; or
xxii. Any event of condition involving financial
impact to the Borrower of its Subsidiaries in
excess of $10 million that could have a
Material Adverse Effect.
An Event of Default in (xv), (xx) or (xxi) above
that affects an FBO or FBOs (other than the
fifteen largest FBO contributors of EBITDA) may be
cured prior to acceleration of the Loans by
prepayment of that portion of the Loan Facility
that corresponds to the highest of the projected,
actual or preceding three-year average EBITDA
contribution of the affected FBO(s). Such
prepayment will release the affected FBO(s) from
the Loan Documents. This method of cure may be
exercised only once during the term of the Loans,
and only if the proportional EBITDA contribution
of the affected FBO(s) does not exceed 5% of
aggregate EBITDA.
IV. INTEREST RATE AND FEES
39. Interest Rate The Facilities will bear interest at one, two,
three or six month LIBOR plus the Applicable
Margin.
40. Applicable Margin Years 1 to 3: 1.75%;
Years 4 to 5: 2.00%.
41. Interest Payment Date Interest will be paid in arrears on the last day
of each Interest Period, except in the case of a
six month Interest Period, where interest will
also be paid three months from the start of the
Interest Period.
42. Interest Period One, two, three or six months.
43. Default Rate Interest Rate plus 2% per annum.
44. Commitment Fee 0.50% per annum of the undrawn portion of the
Facilities, including the Delayed Draw Acquisition
Facility, payable on any Interest Payment Date.
The Commitment Fee will accrue in arrears from the
Closing Date.
V. FLOW OF FUNDS
45. Priority of Payments Following each Interest Payment Date, after
payment of operating expenses, taxes and required
capital expenditures then due and payable,
payments for the following amounts shall be made
in the following order of priority:
i. Fees and expenses due to the Lead Arrangers
and Senior Lenders;
ii. Interest on the Term Loan Facility, the
Revolving Credit
Facility and the Delayed Draw Acquisition
Facility, as well as any periodic scheduled
hedging obligations;
iii. Mandatory Prepayments of the Loans;
iv. Any required payments to the Debt Service
Reserve Account;
v. Optional Repayment and any hedging
termination obligations payable as a result
of such repayment;
vi. Any payments (if applicable) to the Special
Reserve Account;
vii. Distributions to Equity Investor.
46. Debt Service Reserve Borrower shall maintain a Debt Service Reserve
Account Account in an amount equal to six months of
Mandatory Debt Service payable under the
Facilities. The Debt Service Reserve Account shall
be fully funded on the Closing Date.
Alternatively, a letter of credit by a financial
institution rated at least A-/A3 may be posted for
the benefit of the Senior Lenders on the Closing
Date.
VI. RATIOS
47. Debt Service Coverage The Debt Service Coverage Ratio ("DSCR") for a
Ratio particular period will be calculated on a
quarterly basis as the ratio of (a) Net Cash Flow
for the twelve-month period ending on the
respective calculation date to (b) Mandatory Debt
Service for the twelve-month period ending on the
respective calculation date.
48. Debt to EBITDA Ratio The Debt to EBITDA Ratio as of a particular date
will be calculated as the ratio of (a) total
amount of Facilities outstanding to (b) earnings
before interest, tax, depreciation and
amortization.
49. Net Cash Flow "Net Cash Flow" means, in respect of any period,
(a) aggregate Project Revenues received during
such period plus additional equity contributions
during such period not used to pay for expansion
capital expenditures, less (b) the operating
expenses, maintenance capital expenditure and
taxes paid during such period, but excluding any
expansion capital expenditures funded with
distributed amounts or equity contributions or
financed with permitted debt, non-cash charges,
interest and principal payments on the loans,
distributions, investments, costs paid by
insurance proceeds, and employee phantom stock
ownership plan payments.
VII. GENERAL
50. Reporting requirements viii. Annual audited Financial Statements no later
of the Borrower than 90 days after close of each fiscal year;
ix. Quarterly Financial Statements no later than
45 days after close of each fiscal quarter;
x. Contemporaneously with delivery of (i) and
(ii): a compliance certificate stating that
an Event of Default has not occurred, or if
an Event of Default has occurred and is
continuing (and assuming the Administrative
Agent has agreed in its discretion
to extend the cure period), a statement as to
the nature thereof and proposed cure
remedies;
xi. a certificate stating all expansion capital
expenditures during the previous quarter and
the source of funds for such expenditures;
xii. Monthly operating reports no later than 30
days after close of each month;
xiii. EBITDA certificate no later than 30 days
after close of each fiscal quarter during the
EBITDA Test Period, certifying the EBITDA for
the twelve-month period;
xiv. Debt to EBITDA Ratio certificate no later
than 30 days after close of each fiscal
quarter during the Leverage Ratio Test
Period, certifying the Debt to EBITDA Ratio
for the twelve-month period; and
xv. DSCR certificate no later than 30 days after
the close of each fiscal quarter, certifying
the DSCR for the twelve-month period.
51. Governing Law The documentation is governed by New York law,
venue shall be in New York County, and contains a
waiver of jury trial.