EXHIBIT 10.1
Execution Version
AMENDED AND RESTATED LOAN AGREEMENT
dated as of June 28, 2006
among
NORTH AMERICA CAPITAL HOLDING COMPANY,
as Borrower,
THE LENDERS, as herein defined,
and
MIZUHO CORPORATE BANK, LTD.,
as Administrative Agent,
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THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND,
as Documentation Agent,
BAYERISCHE LANDESBANK, NEW YORK BRANCH,
as Syndication Agent,
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND,
BAYERISCHE LANDESBANK, NEW YORK BRANCH
and
MIZUHO CORPORATE BANK, LTD.
as Lead Arrangers,
and
MACQUARIE BANK LIMITED,
as Co-Lead Arranger
ARTICLE I INTERPRETATION............................................................................. 1
ARTICLE II THE CREDIT FACILITIES...................................................................... 2
Section 2.1. Term Loan Facility............................................................... 2
Section 2.2. Revolving Loan Facility.......................................................... 3
Section 2.3. Interest......................................................................... 6
Section 2.4. Interest Periods................................................................. 6
Section 2.5. Repayment of Loans............................................................... 7
Section 2.6. Use of Proceeds of Loans......................................................... 8
Section 2.7. Termination or Reduction of Commitments.......................................... 8
Section 2.8. Prepayments...................................................................... 9
Section 2.9. Fees............................................................................. 12
Section 2.10. Evidence of Indebtedness; Notes.................................................. 13
Section 2.11. Payments Generally............................................................... 14
Section 2.12. Sharing of Payments.............................................................. 14
Section 2.13. Letter of Credit Facility........................................................ 15
ARTICLE III TAXES AND YIELD PROTECTION................................................................. 17
Section 3.1. Taxes............................................................................ 17
Section 3.2. Alternate Rate of Interest....................................................... 18
Section 3.3. Illegality....................................................................... 19
Section 3.4. Increased Costs.................................................................. 19
Section 3.5. Funding Losses................................................................... 21
Section 3.6. Duty to Mitigate; Replacement of Lenders......................................... 21
Section 3.7. Survival......................................................................... 22
ARTICLE IV CONDITIONS PRECEDENT....................................................................... 22
Section 4.1. Conditions Precedent to Borrowing of Refinancing Term Loans...................... 22
Section 4.2. Conditions Precedent to the Closing Date......................................... 28
Section 4.3. Conditions Precedent to Borrowing of Trajen Acquisition Term Loans............... 30
Section 4.4. Conditions Precedent to All Loans................................................ 36
ARTICLE V REPRESENTATIONS AND WARRANTIES............................................................. 37
Section 5.1. Due Incorporation, Qualification, etc............................................ 37
Section 5.2. Authority........................................................................ 37
Section 5.3. Enforceability................................................................... 37
Section 5.4. Non-Contravention................................................................ 37
Section 5.5. Approvals; No Other Business..................................................... 38
Section 5.6. No Violation or Default.......................................................... 39
Section 5.7. Litigation....................................................................... 39
Section 5.8. Possession Under Leases; Title................................................... 39
Section 5.9. Financial Statements............................................................. 39
Section 5.10. Creation, Perfection and Priority of Liens....................................... 40
Section 5.11. Equity Securities................................................................ 40
Section 5.12. No Agreements to Sell Assets; Etc................................................ 40
Section 5.13. Employee Benefit Plans........................................................... 41
Section 5.14. Other Regulations................................................................ 41
Section 5.15. Patent and Other Rights.......................................................... 42
Section 5.16. Governmental Charges............................................................. 42
Section 5.17. Margin Stock..................................................................... 42
Section 5.18. Subsidiaries, Etc................................................................ 42
Section 5.19. Solvency, Etc.................................................................... 43
Section 5.20. Labor Matters.................................................................... 43
Section 5.21. Contracts........................................................................ 43
Section 5.22. No Material Adverse Effect....................................................... 45
Section 5.23. Accuracy of Information Furnished................................................ 45
Section 5.24. Brokerage Commissions............................................................ 45
Section 5.25. Policies of Insurance............................................................ 45
Section 5.26. Bank Accounts and Securities Accounts............................................ 46
Section 5.27. Agreements with Affiliates and Other Agreements.................................. 46
Section 5.28. No Indebtedness.................................................................. 46
Section 5.29. Environmental Matters............................................................ 46
Section 5.30. Fuel Payment Arrangements........................................................ 46
ARTICLE VI COVENANTS.................................................................................. 47
Section 6.1. Affirmative Covenants............................................................ 47
Section 6.2. Negative Covenants............................................................... 61
ARTICLE VII EVENTS OF DEFAULT; REMEDIES................................................................ 69
Section 7.1. Events of Default................................................................ 69
Section 7.2. Remedies Upon Event of Default................................................... 73
Section 7.3. Waiver of Event of Default....................................................... 74
ARTICLE VIII ADMINISTRATIVE AGENT....................................................................... 74
Section 8.1. Appointment and Authorization of Administrative Agent............................ 74
Section 8.2. Delegation of Duties............................................................. 75
Section 8.3. Liability of Administrative Agent................................................ 75
Section 8.4. Reliance by Administrative Agent................................................. 75
Section 8.5. Notice of Default................................................................ 76
Section 8.6. Credit Decision; Disclosure of Information....................................... 76
Section 8.7. Indemnification.................................................................. 77
Section 8.8. Administrative Agent in Its Individual Capacity.................................. 77
Section 8.9. Collateral Agency Agreement...................................................... 77
Section 8.10. Successor Administrative Agent................................................... 78
Section 8.11. Lead Arrangers................................................................... 78
ARTICLE IX HEDGING ARRANGEMENTS....................................................................... 78
Section 9.1. Hedging Payments................................................................. 78
Section 9.2. Voluntary Termination............................................................ 79
Section 9.3. Involuntary Termination or Reduction............................................. 79
Section 9.4. Agreement to be Bound by Loan Documents; Benefit of Lien of Security Documents... 79
ARTICLE X MISCELLANEOUS.............................................................................. 80
Section 10.1. Amendments; Waivers.............................................................. 80
Section 10.2. Notices.......................................................................... 81
Section 10.3. Expenses; Indemnity; Damage Waiver............................................... 83
Section 10.4. Successors and Assigns........................................................... 84
Section 10.5. Confidentiality.................................................................. 87
Section 10.6. Limitation on Interest........................................................... 87
Section 10.7. Right of Setoff.................................................................. 87
Section 10.8. Nonliability of Lenders.......................................................... 88
Section 10.9. Limitation of Recourse........................................................... 88
Section 10.10. Integration...................................................................... 89
Section 10.11. Survival of Representations and Warranties....................................... 89
Section 10.12. Governing Law.................................................................... 89
Section 10.13. Submission To Jurisdiction; Waiver of Jury Trial................................. 89
Section 10.14. Severability..................................................................... 90
Section 10.15. Headings......................................................................... 90
Section 10.16. Counterparts..................................................................... 91
APPENDIX A Definitions and Rules of Interpretation
SCHEDULES:
Schedule A-1 FBO Leases
Schedule A-2 Management Contracts and Heliport Contract
Schedule A-3 Material Contracts
Schedule 2.1 Commitments and Pro Rata Shares
Schedule 5.5 FBO Consents
Schedule 5.7 Litigation and Proceedings
Schedule 5.8 Leases
Schedule 5.10 Exceptions as to Liens
Schedule 5.13 Employee Benefit Plans
Schedule 5.15 Intellectual Property
Schedule 5.18 Subsidiaries
Schedule 5.21 Contracts
Schedule 5.25 Insurance
Schedule 5.26 Bank Accounts and Securities Accounts
Schedule 5.27 Agreements with Affiliates
Schedule 6.2(a) Existing Indebtedness
Schedule 6.2(b) Existing Liens
Schedule 6.2(e) Existing Investments
EXHIBITS:
EXHIBIT A Form of Term Loan Borrowing Request
EXHIBIT B-1 Form of Revolving Loan Borrowing Request
EXHIBIT B-2 Form of Notice of Revolving Loan Conversion
EXHIBIT C Form of Note
EXHIBIT D-1 Form of Debt Service Coverage Ratio Certification
EXHIBIT D-2 Form of EBITDA Certification
EXHIBIT D-3 Form of Leverage Ratio Certification
EXHIBIT E Terms of Permitted Subordinated Debt
EXHIBIT F Form of Control Agreement
EXHIBIT G Form of Assignment and Assumption
AMENDED AND RESTATED LOAN AGREEMENT
This AMENDED AND RESTATED LOAN AGREEMENT (this "AGREEMENT"), dated as of
June 28, 2006 among NORTH AMERICA CAPITAL HOLDING COMPANY, a Delaware
corporation (the "BORROWER"); the several banks and other financial institutions
from time to time parties hereto (the "LENDERS"); and MIZUHO CORPORATE BANK,
LTD., as Administrative Agent for the Lenders (in such capacity, the
"ADMINISTRATIVE Agent").
RECITALS
A. Pursuant to a Loan Agreement, dated as of December 12, 2005, by and
among the Borrower, the lenders party thereto, and the Administrative Agent (the
"Original Loan Agreement"), the lenders thereto have provided to the Borrower
(i) term loans in connection with the refinancing of certain senior indebtedness
of the Borrower relating to the acquisition by it or its affiliate of certain
airport service businesses, the funding of a one-time equity distribution to the
Investor, and certain other purposes permitted thereunder, and (ii) a revolving
credit facility for working capital purposes of the Borrower.
B. The term loan facilities under the Original Loan Agreement have been
fully drawn for the purposes described above.
C. The Borrower contemplates the acquisition, pursuant to an assignment
from the Investor, of 100% of the Equity Securities of Trajen Holdings, Inc., a
Delaware holding company that owns and operates a number of fixed base
operations at municipal airports in the United States.
D. The Lenders party to this Agreement have agreed with the Borrower to
provide term loans to the Borrower in connection with the financing of a portion
of the acquisition costs and other permitted purposes relating to the
acquisition described above.
E. The Lenders have agreed to amend and restate the Original Loan
Agreement subject to and upon the terms set forth herein to reflect the increase
in term loan commitments relating to the additional term loans described above
and to incorporate certain other amendments to the Original Loan Agreement
agreed to among the parties.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
INTERPRETATION
All capitalized terms used but not defined in this Agreement shall have
the respective meanings specified in Appendix A. The rules of interpretation set
forth in Appendix A shall apply to this Agreement.
ARTICLE II
THE CREDIT FACILITIES
Section 2.1. Term Loan Facility.
(a) Term Loan Commitments. Subject to the terms and conditions set
forth herein, (i) each Refinancing Term Loan Lender severally agrees to make
term loans for the purposes specified in Section 2.6(a) (each, a "REFINANCING
TERM LOAN") to the Borrower during the Refinancing Term Loan Commitment Period
in an aggregate principal amount not to exceed the amount of such Term Loan
Lender's Refinancing Term Loan Commitment, and (ii) each Trajen Acquisition Term
Loan Lender severally agrees to make term loans for the purposes specified in
Section 2.6b) (each, a "TRAJEN ACQUISITION TERM LOAN" and, together with the
Refinancing Term Loans, the "TERM LOANS") to the Borrower during the Trajen
Acquisition Term Loan Commitment Period in an aggregate principal amount not to
exceed the amount of such Term Loan Lender's Trajen Acquisition Term Loan
Commitment. Each Refinancing Term Loan shall be made as part of a Borrowing
consisting of Refinancing Term Loans made by the Refinancing Term Loan Lenders
ratably in accordance with their respective Pro Rata Shares of the aggregate
Refinancing Term Loan Commitments of all Refinancing Term Loan Lenders. Each
Trajen Acquisition Term Loan shall be made as part of a Borrowing consisting of
Trajen Acquisition Term Loans made by the Trajen Acquisition Term Loan Lenders
ratably in accordance with their respective Pro Rata Shares of the aggregate
Trajen Acquisition Term Loan Commitments of all Trajen Acquisition Term Loan
Lenders. The Refinancing Term Loans was available in one Borrowing in an amount
not exceeding $300,000,000 for the purposes specified in Section 2.6(a). The
Trajen Acquisition Term Loans shall be available in one Borrowing in an amount
not exceeding $180,000,000 for the purposes specified in Section 2.6(b).
(b) Term Loan Borrowing Procedures.
(i) To request a Term Loan Borrowing, the Borrower shall
deliver to the Administrative Agent an irrevocable Term Loan Borrowing
Request in the form of Exhibit A, appropriately completed, which Borrowing
Request specifies:
(A) the aggregate amount of the requested Term Loan Borrowing;
(B) the proposed date of such Term Loan Borrowing, which shall
be a Business Day;
(C) the initial Interest Period to be applicable thereto; and
(D) the proposed use of the proceeds thereof.
Each Term Loan Borrowing Request must be received by the
Administrative Agent not later than 11:00 a.m., New York City time, three
(3) Business Days before the date of the proposed Term Loan Borrowing and
not earlier than 11:00 a.m., New York City time, ten (10) Business Days
before the date of the proposed Term Loan Borrowing.
(ii) Promptly following receipt of a Term Loan Borrowing
Request in accordance with this Section 2.1, the Administrative Agent
shall advise each Term Loan Lender of the details thereof and of the
amount of such Term Loan Lender's Loan to be made as part of the requested
Term Loan Borrowing. Each Term Loan Lender shall
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make each Term Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 12:00 noon, New
York City time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Term Loan Lenders. Upon
satisfaction of the applicable conditions set forth in Article IV, the
Administrative Agent will make such Term Loans available to the Borrower
by 2:00 p.m. by wire transfer of such funds, in accordance with
instructions reasonably acceptable to the Administrative Agent provided by
the Borrower.
(iii) Unless the Administrative Agent shall have been notified
in writing by any Term Loan Lender prior to the proposed date of the Term
Loan Borrowing that such Term Loan Lender will not make available to the
Administrative Agent such Term Loan Lender's share of such Term Loan
Borrowing, the Administrative Agent may assume that such Term Loan Lender
will make such amount available to the Administrative Agent on such date
in accordance with Section 2.1(b)(ii) and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If a
Term Loan Lender has not in fact made its share of the applicable Term
Loan Borrowing available to the Administrative Agent, such Term Loan
Lender shall forthwith pay to the Administrative Agent on demand such
corresponding amount with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at the Federal
Funds Rate. If such Term Loan Lender does not pay such amount within three
(3) Business Days after the date of such Term Loan Borrowing, the
Administrative Agent may make a demand therefor from the Borrower, and the
Borrower shall, without limitation of the Borrower's rights against the
defaulting Lender, pay such amount to the Administrative Agent, together
with interest thereon from the date such amount was made available to the
Borrower at the interest rate per annum applicable to the Term Loans
advanced on the date of such Term Loan Borrowing. A notice of the
Administrative Agent submitted to any Term Loan Lender or the Borrower
with respect to any amounts owing under this paragraph shall be conclusive
in the absence of manifest error.
(iv) The failure of any Term Loan Lender to make any Term Loan
required to be made by it shall not relieve any other Term Loan Lender of
its obligations hereunder; provided that the Term Loan Commitments of the
Term Loan Lenders are several and no Term Loan Lender shall be responsible
for any other Term Loan Lender's failure to make Term Loans as required
herein.
Section 2.2. Revolving Loan Facility.
(a) Revolving Loan Commitments. Subject to the terms and conditions
set forth herein, the Revolving Loan Lender agrees to make loans (each, a
"REVOLVING LOAN") to the Borrower from time to time during the Revolving Loan
Commitment Period in such amounts as the Borrower may request under this Section
2.2 (and thereafter to make additional Revolving Loans to reimburse the Issuing
Bank for Drawings under Letters of Credit as provided in Section 2.13); provided
that the sum of (A) the aggregate principal amount outstanding of all Revolving
Loans made by the Revolving Loan Lender after giving effect to all prepayment
and repayments thereof and (B) the aggregate outstanding Letter of Credit Usage
shall not exceed the
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Revolving Loan Commitment at any given time. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrower may borrow, repay
and reborrow Revolving Loans until the Revolving Loan Commitment Termination
Date.
(b) Revolving Loan Borrowing Procedures.
(i) To request a Revolving Loan Borrowing (other than a
Borrowing to reimburse the Issuing Bank in respect of a Drawing), the
Borrower shall deliver to the Administrative Agent an irrevocable
Revolving Loan Borrowing Request in the form of Exhibit B-1, appropriately
completed and duly signed by a Responsible Officer of the Borrower, which
Revolving Loan Borrowing Request shall specify:
(A) the aggregate amount of the requested Revolving Loan
Borrowing (which shall be not less than $100,000 and shall be an
integral multiple of $50,000);
(B) the proposed date of such Revolving Loan Borrowing, which
shall be a Business Day; and
(C) whether the requested Revolving Loan Borrowing is to
consist of Base Rate Revolving Loans or LIBOR Revolving Loans and,
if the requested Revolving Loan Borrowing consists of a LIBOR
Revolving Loan, the initial Interest Period selected by the Borrower
for such Revolving Loan in accordance with Section 2.4 of this
Agreement.
Each Revolving Loan Borrowing Request for a Revolving Loan Borrowing consisting
of LIBOR Revolving Loans must be received by the Administrative Agent not later
than 11:00 a.m., New York City time, three (3) Business Days before the date of
such proposed Revolving Loan Borrowing, and each Revolving Loan Borrowing
Request for a Revolving Loan Borrowing consisting of Base Rate Revolving Loans
must be received by the Administrative Agent not later than 11:00 a.m., New York
City time, one (1) Business Day before the date of (or, if agreed to in writing
by the Revolving Loan Lender, on the date of) such proposed Revolving Loan
Borrowing. If no election as to the Type of Revolving Loan Borrowing is
specified in the applicable Revolving Loan Borrowing Request, then the requested
Revolving Loan Borrowing shall consist of Base Rate Revolving Loans. Each
Revolving Loan Borrowing shall be comprised entirely of Base Rate Revolving
Loans or LIBOR Revolving Loans, as the Borrower may request in accordance
herewith. The procedures specified in this paragraph shall not apply to any
Revolving Loan Borrowing with respect to a Drawing under a Letter of Credit
issued pursuant to Section 2.13.
(ii) Promptly following receipt of a Revolving Loan Borrowing
Request in accordance with this Section 2.2(b), the Administrative Agent
shall advise the Revolving Loan Lender of the details thereof and of the
amount of the Revolving Loan Lender's Loan to be made pursuant to the
requested Revolving Loan Borrowing. The Revolving Loan Lender shall make
the Revolving Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds by 12:00 noon, New York
City time, to the account of the Administrative Agent most recently
designated
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by it for such purpose by notice to the Revolving Loan Lender. Upon
satisfaction of the applicable conditions set forth in Section 4.2, the
Administrative Agent shall make such Revolving Loans available to the
Borrower by 2:00 p.m., New York City time, by wire transfer of such funds
in accordance with instructions reasonably acceptable to the
Administrative Agent provided by the Borrower. Notwithstanding the
foregoing, if, at the time of the Borrowing of such Revolving Loan, a
Default or Event of Default has occurred and is continuing and the
Required Lenders have provided notice to the Administrative Agent and the
Revolving Loan Lender that the Revolving Loans may not be made while such
Default or Event of Default is continuing, the Administrative Agent shall
not make such Revolving Loans available to the Borrower. The Revolving
Loan Lender shall make the sole determination as to whether the applicable
conditions to the obligation of the Revolving Loan Lender to make
Revolving Loans set forth in Section 4.2 have been satisfied.
(iii) Unless the Administrative Agent shall have been notified
in writing by the Revolving Loan Lender prior to the proposed date of a
Revolving Loan Borrowing that the Revolving Loan Lender will not make
available to the Administrative Agent such Revolving Loan Borrowing, the
Administrative Agent may assume that the Revolving Loan Lender will make
such amount available to the Administrative Agent on such date in
accordance with Section 2.1(b)(ii) and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If the
Revolving Loan Lender has not in fact made the Revolving Loan available to
the Administrative Agent, the Revolving Loan Lender shall forthwith pay to
the Administrative Agent on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Rate. If the Revolving Loan
Lender does not pay such amount within three (3) Business Days after the
date of such Revolving Loan Borrowing, the Administrative Agent may make a
demand therefor from the Borrower, and the Borrower shall, without
limitation of the Borrower's rights against the defaulting Lender, pay
such amount to the Administrative Agent, together with interest thereon
from the date such amount was made available to the Borrower at the
interest rate per annum applicable to the Revolving Loans advanced on the
date of such Revolving Loan Borrowing. A notice of the Administrative
Agent submitted to the Revolving Loan Lender or the Borrower with respect
to any amounts owing under this paragraph shall be conclusive in the
absence of manifest error.
(c) Conversion of Revolving Loans. Subject to Section 3.5, the
Borrower may convert any Revolving Loan Borrowing from one Type of Revolving
Loan Borrowing to the other Type; provided that no Base Rate Revolving Loan may
be converted into a LIBOR Revolving Loan after the occurrence and during the
continuance of an Event of Default; provided, further, that any conversion of a
LIBOR Revolving Loan on any day other than the last day of the Interest Period
therefor shall be subject to the payments required under Section 3.5. To request
a conversion of a Revolving Loan Borrowing, the Borrower shall deliver to the
Administrative Agent a Notice of Revolving Loan Conversion in the form of
Exhibit B-2, appropriately completed and duly executed by a Responsible Officer
of the Borrower, which Notice of Revolving Loan Conversion shall specify:
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(i) the Revolving Loan Borrowing which is to be converted;
(ii) the Type of Revolving Loan Borrowing into which such
Revolving Loan Borrowing is to be converted; and
(iii) the proposed date of the requested conversion, which
shall be a Business Day.
Each Notice of Revolving Loan Conversion must be received by the
Administrative Agent not later than 11:00 a.m., New York City time, three (3)
Business Days before the date of the requested conversion (and one (1) Business
Day before the date of conversion, in the case of a conversion to a Base Rate
Revolving Loan).
Section 2.3. Interest.
(a) Each LIBOR Loan shall bear interest during each Interest Period
at a rate per annum equal to LIBOR for such Interest Period plus the Applicable
Margin. Each Base Rate Revolving Loan shall bear interest at the Base Rate plus
the Applicable Margin.
(b) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to 2% plus the highest rate applicable to the Loans as provided
in the above paragraph (a) of this Section 2.3 or if no Loans are then
outstanding, 4% plus the Base Rate. Accrued and unpaid interest on past due
amounts shall be due and payable on demand.
(c) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and at such other times as may be
specified herein.
(d) All interest under this Section 2.3 shall be computed on the
basis of a year of 360 days, except that interest computed by reference to the
Base Rate at times when the Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Base Rate or LIBOR shall
be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
Section 2.4. Interest Periods.
(a) Subject to paragraphs (b) and (c) below, the Borrower shall
select the initial Interest Period for each LIBOR Loan in the relevant Borrowing
Request and shall select each subsequent Interest Period for such LIBOR Loan in
an irrevocable notice received by the Administrative Agent not later than 11:00
a.m., New York City time, three (3) Business Days before the start of that
Interest Period; provided that if an Event of Default has occurred and is
continuing at such time, in the discretion of the Administrative Agent such
Interest Period shall have a period of one (1) month.
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(b) The Term Loans shall at any given time be subject to a single
Interest Period provided that the initial Interest Period with respect to the
Borrowing of Trajen Acquisition Term Loans will commence on the date of such
Borrowing and end on the same day as the current Interest Period for the
Refinancing Term Loans previously advanced and, on the last day of such Interest
Period, such Trajen Acquisition Term Loans shall be consolidated with the
Refinancing Term Loans, and the Trajen Acquisition Term Loans and Refinancing
Term Loans will thereafter have the same Interest Period. The initial Interest
Period for a LIBOR Revolving Loan disbursed after the initial Borrowing of LIBOR
Revolving Loans shall end on the same day as the last day of the then current
Interest Period for the LIBOR Revolving Loans previously outstanding, and on the
last day of such Interest Period, the LIBOR Revolving Loans shall be
consolidated and shall thereafter have the same Interest Period.
(c) No Interest Period for a Term Loan shall extend beyond the
Maturity Date, and no Interest Period for a Revolving Loan shall extend beyond
the Maturity Date.
(d) If the Borrower fails to select an Interest Period for a
Borrowing of a LIBOR Loan or an outstanding LIBOR Loan under paragraph (a)
above, the Borrower shall be deemed to have selected an Interest Period of one
(1) month's duration.
(e) The initial Interest Period with respect to the Borrowing of
Refinancing Term Loans may, at the Borrower's election, end on December 31,
2005.
(f) Promptly following receipt of a notice from the Borrower
selecting an Interest Period, the Administrative Agent shall advise each Term
Loan Lender or the Revolving Loan Lender, as applicable, of the details thereof,
and if no timely notice is provided by the Borrower, the Administrative Agent
shall notify each Term Loan Lender or the Revolving Loan Lender, as applicable,
of the details of the applicable Interest Period.
Section 2.5. Repayment of Loans.
(a) Term Loans.
(i) The Borrower shall repay to the Administrative Agent for
the account of the Term Loan Lenders on the Maturity Date the aggregate
principal amount of the Term Loans outstanding on such date.
(ii) Principal amounts of Term Loans repaid may not be
reborrowed.
(b) Revolving Loans. The Borrower shall repay to the Administrative
Agent for the account of the Revolving Loan Lender on the Maturity Date the
aggregate principal amount of the Revolving Loans outstanding on such date.
Section 2.6. Use of Proceeds of Loans.
(a) Borrowing of Refinancing Term Loans. The proceeds of the
Borrowing of Refinancing Term Loans shall be used solely (i) to refinance
certain Indebtedness incurred by the Borrower relating to the acquisition by it
or its affiliates of certain airport service businesses; (ii) to finance a
one-time equity distribution to the Investor; (iii) to pay fees payable on the
date
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of the Borrowing of Term Loans to the Lead Arrangers and the Administrative
Agent; (iv) to make payment of the Debt Service Reserve Required Balance into
the Debt Service Reserve Account as required hereunder; (v) to pay or reimburse
the Borrower for costs and expenses payable by the Borrower pursuant hereto in
connection with the closing of the Loans; and (vi) to retain as cash on the
books of the Borrower to pay for ongoing expenditures incurred in the ordinary
course of business.
(b) Borrowing of Trajen Acquisition Term Loans. The proceeds of the
Borrowing of Trajen Acquisition Term Loans shall be used solely (i) to finance a
portion of the acquisition costs incurred by the Investor in connection with the
Trajen Acquisition; (ii) to pay fees payable on the Trajen Acquisition Term Loan
Disbursement Date to the Lead Arranger, the Administrative Agent and the
Collateral Agent; (iii) to make payment into the Debt Service Reserve Account in
an amount which results in such account being funded with the Debt Service
Reserve Required Balance as required hereunder; and (iv) to pay or reimburse the
Borrower for costs and expenses payable by the Borrower pursuant hereto in
connection with the closing of the Trajen Acquisition Term Loans and this
Agreement.
(c) Revolving Loans. The proceeds of the Revolving Loans shall be
used solely (i) to provide for the working capital and general corporate
purposes of the Borrower and its Subsidiaries (including capital expenditures,
maintenance and repairs); and (ii) to reimburse the Issuing Bank for Drawings.
(d) No Monitoring Obligation. The Administrative Agent shall not be
obligated to monitor or verify the use of proceeds of the Term Loans or the
Revolving Loans.
Section 2.7. Termination or Reduction of Commitments.
(a) The Borrower may, upon notice to the Administrative Agent,
terminate the Commitments, or from time to time reduce the Commitments; provided
that (i) any such notice shall be received by the Administrative Agent not later
than 11:00 a.m. three (3) Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be (A) in the case of the Term
Loans, in an aggregate amount of $1,000,000 or any whole multiple of $500,000 in
excess thereof, and (B) in the case of the Revolving Loans, in an aggregate
amount of $100,000 or any whole multiple of $50,000 in excess thereof; and (iii)
the Borrower may not reduce the Revolving Loan Commitments to an amount less
than the Letter of Credit Usage then outstanding. The Administrative Agent will
promptly notify the applicable Lenders of any such notice of termination or
reduction of any of the Commitments. Any reduction of the Term Loan Commitments
shall be made ratably among the Term Loan Lenders in accordance with their
respective Term Loan Commitments. All commitment fees accrued until the
effective date of any termination of the Commitments shall be paid on the
effective date of such termination.
(b) If the Borrowing of the Refinancing Term Loans has not been made
on or before January 9, 2006, the Administrative Agent (acting at the direction
of the Required Lenders) may, by written notice to the Borrower, terminate the
Commitments of the Lenders with respect to each of the Loans, which termination
shall become effective immediately.
8
(c) If the Borrowing of Trajen Acquisition Term Loans has not been
made on or before December 31, 2006, the Administrative Agent (acting at the
direction of the Required Lenders) may, by written notice to the Borrower,
terminate the Commitments of the Lenders with respect to each of the Loans,
which termination shall become effective immediately; provided that if the
Borrowing of Trajen Acquisition Term Loans in a principal amount of less than
$180,000,000 is made on or prior to such date, then any undrawn Term Loan
Commitments as of such date shall be terminated.
(d) Any termination or reduction of any of the Commitments shall be
permanent.
Section 2.8. Prepayments.
(a) Terms of All Prepayments. Except as otherwise provided in
Section 2.8(b) for optional prepayments and Sections 2.8(c)(v) for mandatory
prepayments required to be paid from Excess Cash Flow and as otherwise provided
in Section 3.3 for any mandatory prepayment resulting from illegality, all
partial prepayments of any of the Term Loans shall be allocated to prepay, on a
pro rata basis, the applicable Term Loans outstanding. Each prepayment of Loans
shall be accompanied by accrued interest on the amount prepaid, any additional
amounts required pursuant to Section 3.5 and any Hedging Termination Obligations
payable in connection therewith.
(b) Optional Prepayments.
(i) The Borrower may at any time or from time to time
voluntarily prepay Loans in whole or in part without premium or penalty on
any Interest Payment Date (subject to Section 3.5(ii)); provided that the
Borrower shall deliver notice to the Administrative Agent (or, in the case
of prepayment of a Revolving Loan, to the Revolving Loan Lender with a
copy thereof to the Administrative Agent) of any prepayment hereunder,
which notice must be received by the Administrative Agent or the Revolving
Loan Lender, as the case may be (A) not later than 11:00 a.m. five (5)
Business Days prior to any proposed date of prepayment of Term Loans, and
(B) not later than 11:00 a.m. three (3) Business Days prior to the
proposed date of prepayment of Revolving Loans. Any prepayment shall (x)
in the case of Term Loans, be in a principal amount of $1,000,000 or a
whole multiple of $500,000 in excess thereof or, if less, the entire
principal amount thereof then outstanding, and (y) in the case of
Revolving Loans, be in a principal amount of $100,000 or a whole multiple
of $50,000 in excess thereof or, if less, the entire principal amount
thereof then outstanding. Each such notice shall be irrevocable and shall
specify (A) the date and amount of such prepayment, (B) whether the
prepayment is of Term Loans or Revolving Loans or a combination thereof,
and, if a combination thereof, the amount of prepayment allocable to each,
and (C) with respect to prepayments of Revolving Loans, the amounts to be
applied to each Revolving Loan outstanding.
(ii) Promptly following receipt of any such notice of
voluntary prepayment, the Administrative Agent shall advise the applicable
Lenders of the contents thereof.
9
(iii) Any prepayment pursuant to this Section 2.8(b) applied
to prepay the Revolving Loans may be reborrowed.
(c) Mandatory Prepayments.
(i) If during any fiscal year of the Borrower, the aggregate
cumulative amount of Net Asset Disposition Proceeds for such fiscal year
exceeds $250,000, the Borrower shall, immediately after the completion of
each sale or series of related sales or other disposition which results in
such an excess or an increase in such an excess, (A) prepay the
outstanding Term Loans and, if the Term Loans shall have been paid in
full, (B) to the extent Revolving Loans are then outstanding, prepay such
Revolving Loans (and, to the extent of any such prepayment, reduce the
Revolving Loan Commitment), and (C) otherwise, Cash Collateralize the
outstanding Letter of Credit Obligations, in an aggregate principal amount
equal to one hundred percent (100%) of such excess or such increase in
such excess. Notwithstanding the foregoing, the Borrower shall not be
required to make a prepayment pursuant to this clause (i) with respect to
any sale or series of related sales (a "RELEVANT SALE") if the Borrower
advises the Administrative Agent in writing at the time the Net Asset
Disposition Proceeds from such Relevant Sale are received that it intends
to reinvest all or any portion of such Net Asset Disposition Proceeds in
replacement assets to the extent (A) such Net Asset Disposition Proceeds
are in fact committed to be reinvested by the Borrower pursuant to a
purchase contract providing for the acquisition of such replacement assets
that is executed by the Borrower and the related seller within 45 days
from the date of such Relevant Sale and (B) the acquisition of such
replacement assets occurs within 180 days from the date on which such
purchase contract is so executed and delivered. If, at any time after the
occurrence of a Relevant Sale and prior to the acquisition of the related
replacement assets, the 45 or 180 day period provided in clause (A) or (B)
of the preceding sentence shall elapse without execution of the related
purchase contract (in the case of clause (A)) or the occurrence of the
related acquisition (in the case of clause (B)) or an Event of Default
shall have occurred and be continuing, then the Borrower shall immediately
prepay the Loans in the amount and in the manner described in the first
sentence of this clause (i).
(ii) If, at any time after the Closing Date, the Borrower or
any of its Subsidiaries issues or incurs any Indebtedness for borrowed
money, including Indebtedness evidenced by notes, bonds, debentures or
other similar instruments, but excluding Permitted Indebtedness, the
Borrower shall, immediately after such issuance or incurrence, (A) prepay
the outstanding Term Loans and, if the Term Loans shall have been paid in
full, (B) to the extent Revolving Loans are then outstanding, prepay such
Revolving Loans (and, to the extent of any such prepayment, reduce the
Revolving Loan Commitment), and (C) otherwise, Cash Collateralize the
outstanding Letter of Credit Obligations, in an aggregate principal amount
equal to one hundred percent (100%) of the Net Debt Proceeds of such
Indebtedness.
(iii) If, at any time after the Closing Date, the Borrower or
any of its Subsidiaries issues or sells any Equity Securities (other than
any issuance or sale specified in the proviso to the definition of Net
Equity Proceeds or in connection with the
10
funding of Expansion Capital Expenditures or the prepayment of Loans
pursuant to Section 2.8(c)(vi)), the Borrower shall, immediately after
such issuance or sale, (A) prepay the outstanding Term Loans and, if the
Term Loans shall have been paid in full, (B) to the extent Revolving Loans
are then outstanding, prepay such Revolving Loans (and, to the extent of
any such prepayment, reduce the Revolving Loan Commitment), and (C)
otherwise, Cash Collateralize the outstanding Letter of Credit
Obligations, in an aggregate principal amount equal to one hundred percent
(100%) of the Net Equity Proceeds of such Equity Securities.
(iv) No later than three (3) Business Days following (x) the
date of receipt by the Borrower or any of its Subsidiaries of any Net
Insurance Proceeds (other than insurance proceeds in respect of business
interruption or anticipated loss in revenue) or Net Condemnation Proceeds,
or (y) if applicable, the end of the 180-day period described in the
proviso below), the Borrower shall (A) prepay the outstanding Term Loans
and, if the Term Loans shall have been paid in full, (B) to the extent
Revolving Loans are then outstanding, prepay such Revolving Loans (and, to
the extent of any such prepayment, reduce the Revolving Loan Commitment),
and (C) otherwise, Cash Collateralize the outstanding Letter of Credit
Obligations, in an amount equal to the aggregate amount of the sum of such
Net Insurance Proceeds and Net Condemnation Proceeds in such fiscal year
(excluding any amounts used to repair, restore or replace assets in
accordance with the immediately following proviso); provided that the
Borrower shall not be obligated to make a prepayment under this clause
(iv) if and to the extent that (i) the Borrower advises the Administrative
Agent in writing at the time the applicable Loan Party receives such
proceeds that such Loan Party intends to repair, restore or replace the
assets from which such Net Insurance Proceeds or Net Condemnation Proceeds
derived, and does so within 180 days of receipt thereof (or such longer
period as is reasonably required to complete such repair, restoration or
replacement; provided that the applicable Loan Party shall have commenced
such repair, restoration or replacement during such 180-day period and
thereafter proceeds with all due diligence to complete such repair,
restoration or replacement within a reasonable period of time acceptable
to the Administrative Agent), it being understood that any Net Insurance
Proceeds or Net Condemnation Proceeds retained by such Loan Party but not
actually expended within such time period to repair, restore or replace
the assets from which such Net Insurance Proceeds or Net Condemnation
Proceeds derived shall at that time immediately be used to prepay the
Loans in the amount and in the manner described in the first sentence of
this clause (iv).
(v) If, following a deposit of Excess Cash Flow to the Special
Reserve Account pursuant to Section 6.1(q)(iii)(B), one or more of the
conditions to Distribution set forth in Section 6.2(f)(i)(B) (the
"DISTRIBUTION REQUIREMENTS") are not satisfied as of each of the
succeeding two (2) consecutive Calculation Dates, all monies that have
been on deposit in the Special Reserve Account for a period of two (2)
consecutive fiscal quarters or longer shall be applied to prepay the
Loans. All prepayments of the Loans then outstanding pursuant to this
clause (v) shall be applied (A) to prepay the outstanding Term Loans and,
if the Term Loans shall have been paid in full, (B) to the extent
Revolving Loans are then outstanding, prepay such Revolving Loans (and, to
the extent of any such prepayment, reduce the Revolving Loan
11
Commitment), and (C) otherwise, to Cash Collateralize the outstanding
Letter of Credit Obligation. All funds on deposit in the Special Reserve
Account (other than any monies required to prepay Loans in accordance with
Section 2.8(c)(v) or 2.8(c)(vi)) shall be released to the Borrower or at
the Borrower's direction as Cash Available for Distribution if the
Distribution Requirements are satisfied for each of such two (2)
consecutive Calculation Dates, and the Borrower may make a Distribution of
such funds.
(vi) If, during the Leverage Ratio Test Period, any Applicable
Leverage Ratio is not achieved, the Borrower shall (within two (2)
Business Days after the Borrower have delivered a certified calculation of
the Leverage Ratio for the applicable quarterly period pursuant to Section
6.1(a)(vii)), prepay the Loans from Excess Cash Flow, or from equity
contributions by the Investor, in such amounts as are required to achieve
such Applicable Leverage Ratio. All prepayments of the Loans then
outstanding pursuant to this clause (vi) shall be applied (A) to prepay
the outstanding Term Loans and, if the Term Loans shall have been paid in
full, (B) to the extent Revolving Loans are then outstanding, prepay such
Revolving Loans (and, to the extent of any such prepayment, reduce the
Revolving Loan Commitment), and (C) otherwise, to Cash Collateralize the
outstanding Letter of Credit Obligation.
(vii) The proceeds of any termination payment or similar
compensation received by any Subsidiary of the Borrower from an Airport
Authority or any other party in respect of the termination of any FBO
Lease, Management Contract or the Heliport Contract shall be applied,
immediately upon receipt of such payment, (A) to prepay the outstanding
Term Loans and, if the Term Loans shall have been paid in full, (B) to the
extent Revolving Loans are then outstanding, prepay such Revolving Loans
(and, to the extent of any such prepayment, reduce the Revolving Loan
Commitment), and (C) otherwise, to Cash Collateralize the outstanding
Letter of Credit Obligation; provided that no such prepayment shall be
required if the Borrower makes a prepayment that cures an Event of Default
relating to such Material Contract or Subsidiary as permitted by the last
paragraph of Section 7.1.
Section 2.9. Fees.
(a) Commitment Fees. The Borrower agrees to pay (i) to the
Administrative Agent for the account of each applicable Term Loan Lender a
commitment fee equal to 0.50% per annum on the daily amount of the Available
Refinancing Term Loan Commitment of such Term Loan Lender during the period from
and including the "Closing Date" under, and as defined in, the Original Loan
Agreement to but excluding the last day of the Refinancing Term Loan Commitment
Period, (ii) to the Administrative Agent for the account of each applicable Term
Loan Lender a commitment fee equal to 0.50% per annum on the daily amount of the
Available Trajen Acquisition Term Loan Commitment of such Term Loan Lender
during the period from and including the Closing Date to but excluding the last
day of the Trajen Acquisition Term Loan Commitment Period, and (iii) to the
Revolving Loan Lender for its own account a commitment fee equal to 0.50% per
annum on the daily amount of the Available Revolving Loan Commitment during the
period from and including the Closing Date to but excluding the last day of the
Revolving Loan Commitment Period. Accrued commitment fees shall be payable in
arrears on the last Business Day of March, June, September and December of
12
each year, commencing on the first of such dates to occur after the Closing Date
(as defined in the Original Loan Agreement and this Agreement, as applicable)
and on the last day of the applicable Commitment Period. All commitment fees
shall be calculated on the basis of a year of 360 days and for the actual days
elapsed (including the first day but excluding the last day).
(b) Letter of Credit Fees. The Borrower shall pay to the Revolving
Loan Lender a letter of credit fee for each Letter of Credit issued pursuant to
Section 2.13 at a rate per annum equal to the Applicable Margin for LIBOR
Revolving Loans multiplied by the daily maximum amount available to be drawn
under such Letter of Credit, calculated on the basis of a year of 360 days and
for the actual days elapsed (including the first day but excluding the last
day), for the period from date of issuance of such Letter of Credit until the
expiry or termination thereof. Such fee shall be payable in arrears on the last
Business Day of March, June, September and December of each year, commencing on
the first of such dates to occur after the issuance of a Letter of Credit
pursuant to Section 2.13, and on the Letter of Credit Expiration Date.
(c) Documentary And Processing Charges Payable To Issuing Bank. The
Borrower shall pay directly to the Issuing Bank for its own account the
customary and reasonable issuance, presentation, amendment, negotiation and
other processing fees, and other standard and reasonable costs and charges, of
the Issuing Bank relating to letters of credit as from time to time in effect.
Such fees and charges are due and payable on demand and once paid, are
nonrefundable.
(d) Other Fees. The Borrower agrees to pay to the Lead Arrangers,
the Administrative Agent and the Issuing Bank for their own respective accounts
fees payable in the amounts and at the times separately agreed upon between the
Borrower and such parties, which fees shall be deemed to be payable hereunder.
(e) Fees Fully Earned When Paid. All fees shall be fully earned when
paid and shall not be refundable under any circumstances.
Section 2.10. Evidence of Indebtedness; Notes.
The Loans made by each Lender shall be evidenced by one or more accounts
or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Loans made by the Lenders to the Borrower and the interest
and payments thereon. Any failure to so record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the Borrower hereunder
to pay any amount owing with respect to the Obligations. In the event of any
conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of
manifest error. Upon the request of any Lender made through the Administrative
Agent, the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender's Loans in
addition to such accounts or records. Each Lender may attach schedules to its
Note and endorse thereon the date, amount and maturity of its Loans and payments
with respect thereto.
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Section 2.11. Payments Generally.
(a) Each payment by the Borrower hereunder (whether of principal,
interest, fees or any other amount) shall be made prior to 12:00 noon, New York
City time, on the date when due, in Dollars in immediately available funds,
without condition or deduction for any counterclaim, defense, recoupment or
setoff. Any amounts received after such time on any date may, in the discretion
of the Administrative Agent or, with respect to Revolving Loans, the Revolving
Loan Lender, be deemed to have been received on the next succeeding Business Day
for purposes of calculating interest thereon. All payments shall be made to the
account of the Administrative Agent (account number H79-740-222205) at Mizuho
Corporate Bank, Ltd. (ABA number 026-004-307) or such other account as may
hereafter be designated by the Administrative Agent in writing. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly upon receipt
thereof, in like funds as received.
(b) If any payment to be made by the Borrower under any Loan
Document becomes due and payable on a day other than a Business Day, the date
for payment shall be extended to the next succeeding Business Day, and such
extension of time shall be reflected in computing interest or fees.
(c) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
Section 2.12. Sharing of Payments.
If any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on its Term
Loans or Revolving Loans or participation in the Letter of Credit Facility,
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of such Loans or such participation in the Letter of Credit
Facility and accrued interest thereon than the proportion received by any other
Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Term Loans, Revolving Loans and
participations in the Letter of Credit Facility of the other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Term Loans, Revolving Loans and
participations in the Letter of Credit Facility; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Borrower or Affiliate thereof (as to which the
provisions
14
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable Legal
Requirement, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were a direct creditor of the Borrower in the amount of such
participation.
Section 2.13. Letter of Credit Facility.
(a) Letter of Credit Commitment. Subject to the terms and conditions
set forth herein, the Issuing Bank agrees to issue standby Letters of Credit
under the Letter of Credit Facility for the account of the Borrower from time to
time prior to the Letter of Credit Expiration Date or, at any time when the
Revolving Loan facility is in effect, during the Revolving Loan Commitment
Period; provided that (i) no Letter of Credit pursuant to this Section 2.13
shall be issued prior to the Borrowing of the Term Loans (except as provided in
the last sentence of this clause (a)), (ii) the face amount of any such
requested Letter of Credit shall not, at the time of issuance, exceed the
Revolving Loan Commitment at any time when the Revolving Loan facility is in
effect; (iii) the aggregate outstanding Letter of Credit Usage shall not exceed
the Letter of Credit Sublimit at any time; and (iv) each such Letter of Credit
shall have an expiration date that is no later than the date that is one (1)
year from the date of issue, unless as otherwise agreed to by the Issuing Bank;
provided that no such Letter of Credit shall have an expiration date later than
the Letter of Credit Expiration Date. The obligation of the Issuing Bank to
issue Letters of Credit shall expire on the Letter of Credit Expiration Date or,
if the Revolving Loan facility is in effect, the last day of the Revolving Loan
Commitment Period. Each Letter of Credit pursuant to this Section 2.13 shall be
in a form reasonably acceptable to the Issuing Bank.
(b) Procedure For Issuance of Letter of Credit. To request the
issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit) pursuant to this Section 2.13, the Borrower shall
deliver to the Issuing Bank (with a copy thereof to the Administrative Agent)
(which request must be received by the Issuing Bank and the Administrative Agent
not later than 11:00 a.m., New York City time, three (3) Business Days before
the requested date of issuance, amendment, renewal or extension) an irrevocable
written request for the issuance of a Letter of Credit, or identifying the
Letter of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the
date on which such Letter of Credit is to expire (which shall comply with
paragraph (a) of this Section 2.13), the amount of such Letter of Credit, the
name and address of the beneficiary thereof and such other information as shall
be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the Issuing Bank, the Borrower also shall submit a letter of credit
application on the Issuing Bank's standard form in connection with any request
for a Letter of Credit.
(c) Revolving Loan Lender Participation. Immediately upon the
issuance of a Letter of Credit in accordance with this Section 2.13, the Issuing
Bank shall be deemed to have sold and transferred to the Revolving Loan Lender,
and the Revolving Loan Lender shall be deemed to have purchased and received
from the Issuing Bank, in each case irrevocably and without any further action
by any party, an undivided interest and participation in such Letter of Credit,
each Drawing and other Reimbursement Obligations of the Borrower in respect
thereof in an amount equal to the applicable Outstanding Amount then in effect.
The Issuing Bank shall
15
promptly advise the Revolving Loan Lender of the changes in the applicable
Outstanding Amount or Letter of Credit Expiration Date and any Drawing
therefrom; provided that the failure to give such notice shall not limit or
impair the rights of the Issuing Bank hereunder and under the Loan Documents.
(d) Payment of Drawing. Upon a Drawing, the Borrower shall be
obligated to pay to the Issuing Bank a Reimbursement Obligation in the amount of
the Drawing not later than 12:00 noon, New York City time, on the same Business
Day that the Drawing is made, if the Borrower shall have received notice of such
Drawing prior to 10:00 a.m., New York City time, on such date, or, if such
notice was received by the Borrower after such time, then not later than 12:00
noon, New York City time on the immediately following Business Day unless the
reimbursement is made by a Revolving Loan (and in the latter case such payment
shall include interest on the Reimbursement Obligation from the date of the
Drawing to such payment date). Unless the Borrower shall notify the Issuing
Bank, the Revolving Loan Lender and the Administrative Agent that such
Reimbursement Obligation will be paid by the Borrower without using a Revolving
Loan, the payment by the Issuing Bank of such Drawing shall be deemed
automatically to be a request for the making by the Revolving Loan Lender of a
Revolving Loan to the Borrower in the amount of such Drawing on the date of such
Drawing, and the Issuing Bank shall promptly so notify the Revolving Loan
Lender. The Revolving Loan Lender shall, on the Business Day of the Drawing,
make a Revolving Loan for the account of the Borrower in an amount equal to the
Drawing, the proceeds of which shall be applied to reimburse the Issuing Bank.
The obligation of the Revolving Loan Lender to so reimburse the Issuing Bank by
making a Revolving Loan shall be absolute and unconditional and shall not be
affected by the occurrence of an Event of Default or any other occurrence or
event. In the event that the Revolving Loan Lender fails to make available for
the account of the Issuing Bank the amount of such Revolving Loan, the Issuing
Bank shall be entitled to recover such amount on demand from such Lender
together with interest thereon at a rate equal to the daily average Federal
Funds Rate.
(e) Conditions To Issuance of Letters of Credit. The obligation of
the Issuing Bank to issue any Letter of Credit pursuant to this Section 2.13 is
subject to the satisfaction, on the proposed issuance date, of the following
conditions precedent: (i) all representations and warranties of each Loan Party
contained in the Loan Documents shall be true, correct and accurate in all
respects on and as of such issuance date (except to the extent such
representations and warranties relate to an earlier date), and (ii) no Default
or Event of Default shall have occurred or be continuing.
(f) Replacement of The Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the Revolving Loan Lender, the replaced Issuing Bank and the successor
Issuing Bank, and upon replacement of any outstanding Letters of Credit with
replacements issued by the successor Issuing Bank; provided that any successor
Issuing Bank shall have a credit rating for its Reference Debt that is
reasonably acceptable to the beneficiaries of the replacement Letters of Credit.
The Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.9. From and after the effective date of any
such replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be
16
issued thereafter and (ii) references herein to the term "Issuing Bank" shall be
deemed to refer to such successor or to any previous Issuing Bank, or to such
successor and all previous Issuing Banks, as the context shall require.
ARTICLE III
TAXES AND YIELD PROTECTION
Section 3.1. Taxes.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder or under any other Loan Document shall be made free and clear
of and without deduction for any Indemnified Taxes or Other Taxes; provided that
if the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section 3.1) the Administrative Agent or
Lender (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable Legal
Requirements.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable Legal
Requirements.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within ten (10) days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder or under any other Loan Document
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 3.1) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
by the Administrative Agent on its own behalf or on behalf of a Lender shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority in accordance with
clause (a) or (b) above, the Borrower shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.
(e) Each Foreign Lender shall deliver to the Administrative Agent,
prior to receipt of any payment subject to withholding under the IRC (or upon
accepting an assignment of an interest herein), two duly signed completed copies
of either IRS Form W-8BEN or any successor thereto (relating to such Foreign
Lender and entitling it to an exemption from, or
17
reduction of, withholding tax on all payments to be made to such Foreign Lender
by the Borrower pursuant to this Agreement) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Foreign Lender by the
Borrower pursuant to this Agreement) or such other evidence satisfactory to the
Borrower and the Administrative Agent that such Foreign Lender is entitled to an
exemption from, or reduction of, U.S. withholding tax, including any exemption
pursuant to Section 881(c) of the IRC. Thereafter and from time to time, each
such Foreign Lender shall (A) promptly submit to the Administrative Agent such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to the
Borrower and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be
made to such Foreign Lender by the Borrower pursuant to this Agreement, and (B)
promptly notify the Administrative Agent of any change in circumstances which
would modify or render invalid any claimed exemption or reduction.
(f) If any Governmental Authority asserts that the Administrative
Agent did not properly withhold or backup withhold, as the case may be, any tax
or other amount from payments made to or for the account of any Lender, such
Lender shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section 3.1, and costs and
expenses of the Administrative Agent. The obligation of the Lenders under this
Section 3.1 shall survive the termination of the Commitments, repayment of all
other Obligations hereunder and the resignation of the Administrative Agent.
(g) If a Lender assigns a Loan to a United States Person that is not
an "exempt recipient" as defined in Treasury Regulation Section
1.6049-4(c)(1)(ii), such assignee shall provide two duly signed and completed
copies of IRS form W-9 (or any successor form thereto) to the Administrative
Agent.
Section 3.2. Alternate Rate of Interest.
If prior to the commencement of any Interest Period or the borrowing of
any LIBOR Revolving Loan, (a) the Administrative Agent or the Revolving Loan
Lender, as applicable, determines (which determination shall be conclusive
absent manifest error) that adequate and reasonable means do not exist for
ascertaining LIBOR for such Interest Period or (b) the Administrative Agent is
advised by the Required Lenders, or, in the case of LIBOR Revolving Loans, the
Revolving Loan Lender, determines, that LIBOR determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to such
Lenders or Revolving Loan Lender, as applicable, of making or maintaining such
Loans for such Interest Period, the Administrative Agent or the Revolving Loan
Lender, as applicable, shall promptly give notice thereof to the Borrower and,
if applicable, the Required Lenders, by telephone or telecopy as promptly as
practicable thereafter and, until the Administrative Agent or the Revolving Loan
Lender, as applicable, notifies the Borrower and, if applicable, such Required
Lenders, that the circumstances giving rise to such notice no longer exist, the
Administrative Agent or the Revolving Loan Lender, as applicable, shall promptly
give written notice thereof to the Borrower and, if applicable, such Required
Lenders. If such notice is given with respect to Term Loans,
18
the rate of interest on each applicable Lender's Loans for each Interest Period
thereafter will be the average cost of funds for the Required Lenders, as
reasonably determined by the Administrative Agent, plus the Applicable Margin.
If such notice is given with respect to Revolving Loans, all LIBOR Revolving
Loans shall be deemed to have been converted into Base Rate Revolving Loans
effective upon the giving of such notice, and LIBOR Revolving Loans shall
thereafter not be available until the Revolving Loan Lender advises the Borrower
that the circumstances giving rise to such notice no longer exist.
Section 3.3. Illegality.
If any Lender determines that any Legal Requirement has made it unlawful,
or that any Governmental Authority has asserted that it is unlawful, for any
Lender or its applicable Lending Office to make, maintain or fund LIBOR Loans,
or to determine or charge interest rates based upon LIBOR, then, on notice
thereof by such Lender to the Borrower (through the Administrative Agent, in the
case of any Term Loans), any obligation of such Lender to make or continue LIBOR
Loans or to convert Base Rate Revolving Loans to LIBOR Revolving Loans shall be
suspended until such Lender notifies the Administrative Agent and the Borrower
that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Borrower shall, upon demand from such Lender (with a
copy to the Administrative Agent), prepay, either on the last day of the
Interest Period therefor, if such Lender may lawfully continue to maintain such
LIBOR Loans to such day, or immediately, if such Lender is the Revolving Loan
Lender and/or such Lender may not lawfully continue to maintain such LIBOR
Loans; provided that (i) in the case of Term Loans, if prior to such prepayment
date the affected Lender and the Borrower can agree upon an alternative mutually
acceptable basis for determining the interest rate from time to time applicable
to the Term Loans owing to such Lender that will avoid such illegality (it being
understood and agreed that the Base Rate shall be an acceptable substitute rate
if the Borrower so elects and it shall be legal for such Lender to maintain its
Loans as Base Rate Loans), such interest rate shall take effect from the date of
such agreement and lieu of such required prepayment; and (ii) in the case of
LIBOR Revolving Loans, if conversion of such Revolving Loans into Base Rate
Loans will avoid such illegality, all LIBOR Revolving Loans shall be converted
to Base Rate Revolving Loans. Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted.
Section 3.4. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or the Issuing Bank
(including any reserve established by the Federal Reserve Board); or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or Loans
made by such Lender or any Letter of Credit issued by the Issuing Bank
pursuant to Section 2.13;
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and the result of any of the foregoing shall be to increase the cost to such
Lender or the Issuing Bank of making or maintaining any Loan or such Letter of
Credit (or of maintaining its obligation to make any such Loan or Letter of
Credit) or to reduce the amount of any sum received or receivable by such Lender
or the Issuing Bank hereunder (whether of principal, interest or otherwise),
then the Borrower will pay to such Lender or the Issuing Bank, as applicable,
such additional amount or amounts as will compensate such Lender or the Issuing
Bank, as applicable, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the Issuing Bank's capital or on the capital
of such Lender's or the Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made by such Lender or the Letters of Credit
issued by the Issuing Bank, to a level below that which such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the Issuing Bank's policies and the policies of such Lender's or the Issuing
Bank's holding company with respect to capital adequacy), then from time to time
the Borrower will pay to such Lender or the Issuing Bank, as applicable, such
additional amount or amounts as will compensate such Lender or the Issuing Bank
or such Lender's or the Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section 3.4 shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender or the Issuing Bank,
as applicable, the amount shown as due on any such certificate within ten (10)
days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank
to demand compensation pursuant to this Section 3.4 shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender or the
Issuing Bank pursuant to this Section 3.4 for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender or the Issuing
Bank, as the case may be, notifies the Borrower of the Change in Law giving rise
to such increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; and provided, further, that if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the 180-day period referred to above shall be extended to include the
period of retroactive effect thereof.
Section 3.5. Funding Losses.
The Borrower agrees to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur as a
consequence of (i) any failure by the Borrower (for a reason other than the
wrongful failure of such Lender to make a Loan) to borrow or prepay any Loan on
the date or in the amount notified by the Borrower, or (ii) any payment or
prepayment of any Loan on a day other than the last day of an Interest Period
with respect thereto (whether voluntary, mandatory, by reason of acceleration,
or otherwise),
20
including the amount (if any) determined by the relevant Lender by which (x) the
interest at the LIBOR which such Lender would have received for the period from
the date of receipt of funds to repay or prepay a Loan to the last day of the
applicable Interest Period for such Loan if the principal received had been paid
on the last day of such Interest Period exceeds (y) the amount which such Lender
would be able to obtain by placing an amount equal to the amount received by it
on deposit with a leading bank in the appropriate interbank market for a period
starting on the Business Day following receipt and ending on the last day of the
applicable Interest Period. Any Lender demanding indemnification for any loss or
expense sustained or incurred by it pursuant to this Section 3.5 shall, at the
time of such demand, deliver to the Borrower a certificate specifying in
reasonable detail the additional amount to be paid to it for any such loss or
expense. Each determination by a Lender of the amounts owing to it pursuant to
this Section 3.5 shall be conclusive and binding in the absence of manifest
error.
Section 3.6. Duty to Mitigate; Replacement of Lenders.
(a) If the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.1, or if any Lender requests compensation under Section 3.4, or if the
Borrower would be required to prepay the Loans of any Lender pursuant to Section
3.3, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.1 or 3.4 or
avoid the prepayment under Section 3.3), as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b) If the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.1, or if any Lender requests compensation under Section 3.4, or if the
Borrower would be required to prepay the Loans of any Lender pursuant to Section
3.3, or if any Lender defaults in its obligation to fund Loans hereunder, then
the Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.4), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from payments required to be made
pursuant to Section 3.1 or a claim for compensation under Section 3.4, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender
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or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
Section 3.7. Survival.
All of the Borrower's obligations under this Article III shall survive
termination of the Commitments and the payment in full of all Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1. Conditions Precedent to Borrowing of Refinancing Term Loans.
The obligation of each Refinancing Term Loan Lender to advance Refinancing
Term Loans pursuant to the Original Loan Agreement on the Refinancing Term Loan
Disbursement Date was subject to the satisfaction of the following conditions
precedent:
(a) Principal Loan Documents.
(i) The following documents shall have been duly authorized,
executed and delivered by the parties thereto (such parties shall include,
but not be limited to, the Borrower, the other Loan Parties, the
Administrative Agent, the Collateral Agent and the Lenders), are in full
force and effect and originals thereof shall have been delivered to the
Administrative Agent and the Borrower:
(A) the Original Loan Agreement;
(B) a Note in favor of each Lender requesting a Note, each in
a principal amount equal to that Lender's Commitment;
(C) the Fee Letters;
(D) the Collateral Agency Agreement;
(E) the Security Agreement;
(F) the Executive Intellectual Property Security Agreement;
(G) the Subsidiary Guaranty and the Contribution Agreement;
(H) the Subsidiary Security Agreement;
(I) the Pledge Agreements; and
(J) all other Security Documents.
(ii) A copy of each of the Material Contracts in existence as
of the Refinancing Term Loan Disbursement Date shall have been delivered
to the
22
Administrative Agent, together with a certificate of a Responsible Officer
of the Borrower certifying as of the Refinancing Term Loan Disbursement
Date that each such Material Contract delivered (A) is a true, correct and
complete copy of such document and (B) is in full force and effect.
(b) Base Case Projections. The Administrative Agent shall have
received the Base Case Projections of the Borrower, certified as such by a
Responsible Officer of the Borrower, approved in a certification by the Model
Auditor and in form and substance satisfactory to the Administrative Agent,
including therein projections of revenues, operating expenses, cash flow, debt
service, capital expenditures (which items shall be categorized to show
discretionary capital expenditures to be undertaken in the ordinary course of
business and Expansion Capital Expenditures) and other related items, and which
shall show a minimum projected Debt Service Coverage Ratio of at least 1.85 to
1.00 as of each Calculation Date occurring on or after the Refinancing Term Loan
Disbursement Date, together with a certification as of the Refinancing Term Loan
Disbursement Date by a Responsible Officer of the Borrower that the Base Case
Projections are based on reasonable assumptions and prepared in good faith
taking into account all information known to such officer, after due inquiry.
The Administrative Agent shall have received a report of the Model Auditor
satisfactory to the Administrative Agent regarding the Model Auditor's audit of
the Base Case Projections.
(c) Operating Budget. The Administrative Agent shall have received a
business plan and operating budget for the calendar year 2006, showing in
reasonable detail all projected revenues and operating expenses (identifying
separately capital expenditures), debt service and other related items with
respect to the Borrower for such period on a monthly basis.
(d) Pro Forma Balance Sheet. The Administrative Agent shall have
received a certified copy of a pro forma balance sheet setting forth the assets
and liabilities of the Borrower on a consolidated basis.
(e) Hedging Arrangements. The Borrower shall have entered into
Hedging Agreements with the Hedging Banks and, as necessary, novation
arrangements with respect to the Existing Swaps on terms and with counterparties
acceptable to the Hedging Banks, all in a manner satisfactory to the Borrower
and the Administrative Agent, which Hedging Transactions shall implement a swap
establishing, in the aggregate, a fixed interest rate for at least 75% of the
Term Loans projected to be outstanding for the period from the date of such
Borrowing to the Maturity Date.
(f) Organizational Documents. The Administrative Agent shall have
received the following:
(i) the certificate of incorporation, articles of
incorporation, certificate of limited partnership, articles of
organization or comparable document of each Loan Party, certified as of a
recent date prior to the Refinancing Term Loan Disbursement Date by the
Secretary of State (or comparable public official) of its state of
incorporation or formation;
23
(ii) a certificate of good standing (or comparable
certificate), certified as of a recent date prior to the Refinancing Term
Loan Disbursement Date by the Secretary of State (or comparable public
official) of its state of incorporation or formation stating that each
Loan Party is in good corporate and tax standing under the laws of such
states;
(iii) a certificate of the Secretary or an Assistant Secretary
(or comparable officer) of each Loan Party, dated the Refinancing Term
Loan Disbursement Date, certifying that (A) attached thereto is a true and
correct copy of the bylaws, partnership agreement, limited liability
company agreement or comparable document of each Loan Party as in effect
on the Refinancing Term Loan Disbursement Date; (B) attached thereto are
true and correct copies of resolutions duly adopted by the board of
directors or other governing body of each Loan Party (or other comparable
enabling action) and continuing in effect, which authorize the execution,
delivery and performance by each Loan Party of the Loan Documents to be
executed by such Loan Party and the consummation of the transactions
contemplated thereby; and (C) there are no proceedings for the dissolution
or liquidation of each Loan Party; and
(iv) a certificate of the Secretary or an Assistant Secretary
(or comparable officer) of each Loan Party, dated the Refinancing Term
Loan Disbursement Date, certifying the incumbency, signatures and
authority of the officers of such Loan Party authorized to execute,
deliver and perform the Loan Documents to be executed by such Loan Party.
(g) Financial Statements, Financial Condition, Etc. The Borrower
shall have delivered to the Administrative Agent:
(i) audited Financial Statements of (A) NACH and its
Subsidiaries and (B) MANA and its Subsidiaries (each prepared on a
consolidated basis) as of and for the year most recently ended more than
90 days prior to the date of the Refinancing Term Loan Disbursement Date,
unaudited Financial Statements of NACH and its Subsidiaries and MANA and
its Subsidiaries (each prepared on a consolidated basis) as of and for the
fiscal quarter most recently ended more than 45 days prior to the
Refinancing Term Loan Disbursement Date, each of which shall be certified
by a Responsible Officer of the Borrower as being to his Actual Knowledge,
after due inquiry, complete and correct in all material respects and
fairly presenting the financial condition, results of operations and
changes in cash flows of NACH or MANA, as applicable, and its respective
Subsidiaries on such dates and for any interim periods then ended, in
accordance with GAAP applied on a consistent basis;
(ii) a certificate by the chief financial officer of the
Borrower stating that to his Actual Knowledge, after due inquiry, since
the date of such Financial Statements, no event has occurred, and no
condition exists, that has had, or could reasonably be expected to have, a
Material Adverse Effect;
(iii) a certificate by the chief financial officer of the
Borrower as to the financial condition and solvency of NACH and its
Subsidiaries and MANA and its
24
Subsidiaries (after giving effect to the incurrence of Indebtedness
pursuant to the Loan Documents); and
(iv) such other financial, business and other information
regarding the Investor, the Borrower or any of its Subsidiaries as the
Administrative Agent, the Issuing Bank or any Lender may reasonably
request, including information as to possible contingent liabilities, tax
matters, environmental matters and obligations for employee benefits and
compensation.
(h) Security Documents. All filings and recordings necessary, in the
opinion of the Administrative Agent, to perfect the security interests
contemplated to be granted to the Collateral Agent for the benefit of the
Secured Parties under the Security Documents shall have been made, and the
Administrative Agent shall have received evidence satisfactory to it that the
Security Documents are in full force and effect and the Liens contemplated by
the Security Documents are perfected and of first priority (except for any such
prior Liens which are expressly permitted by this Agreement to be prior). The
Administrative Agent shall have received:
(i) Uniform Commercial Code search certificates from the
jurisdictions in which Uniform Commercial Code financing statements are to
be filed reflecting no other financing statements or filings which
evidence Liens of other Persons in the Collateral which are prior to the
Liens granted to the Administrative Agent in this Agreement, the Security
Documents and the other Loan Documents, except for any such prior Liens
(a) which are expressly permitted by this Agreement to be prior or (b) for
which the Administrative Agent has received a termination statement;
(ii) except as otherwise provided in this Agreement, a control
agreement for each bank at which the Borrower or any of its Subsidiaries
maintains a deposit account, upon terms and provisions satisfactory to the
Administrative Agent, each appropriately completed, duly executed by such
Loan Party, and the Administrative Agent and acknowledged by the
depositary bank to which addressed;
(iii) except as otherwise provided in this Agreement, a
control agreement for each securities account at which the Borrower or any
of its Subsidiaries maintains a securities account, upon terms and
provisions satisfactory to the Administrative Agent, each appropriately
completed, duly executed by such Loan Party, and the Administrative Agent
and acknowledged by the securities intermediary to which addressed;
(iv) such other documents, instruments and agreements as the
Administrative Agent may reasonably request to create and perfect the
Liens granted to the Administrative Agent or any Lender in this Agreement,
the Security Documents and the other Loan Documents; and
(v) such other evidence as the Administrative Agent may
request to establish that the Liens granted to the Collateral Agent for
the benefit of the Secured Parties in this Agreement, the Security
Documents and the other Loan Documents are
25
perfected and prior to the Liens of other Persons in the Collateral,
except for any such Liens which are expressly permitted by this Agreement
to be prior.
(i) Opinions of Counsel. The Administrative Agent shall have
received a favorable written opinion, addressed to the Administrative Agent, the
Collateral Agent, the Issuing Bank and each Lender and dated the date of the
Refinancing Term Loan Disbursement Date, of:
(i) Pillsbury Winthrop Shaw Pittman LLP, counsel to the
Borrower and certain of the Loan Parties;
(ii) Shipman & Goodwin LLP, special Connecticut counsel to
certain of the Loan Parties;
(iii) Phelps Dunbar LLP, special Louisiana counsel to certain
of the Loan Parties;
(iv) Strasburger & Price, LLP, special Texas counsel to
certain of the Loan Parties;
(v) Lewis & Roca LLP, special Nevada counsel to certain of the
Loan Parties; and
(vi) Emmet, Marvin & Martin LLP, counsel to the Collateral
Agent.
Each such opinion shall be in customary form and substance satisfactory to the
Administrative Agent and address such matters as the Administrative Agent may
reasonably request.
(j) Insurance. All insurance required to be maintained by the
Borrower and its Subsidiaries under Section 6.1(e) shall be in full force and
effect, all premiums then due and payable in connection therewith shall have
been paid, such insurance shall not be subject to cancellation without prior
notice to the Administrative Agent and Lenders and shall otherwise conform to
the requirements for such insurance under Section 6.1(e), and the Administrative
Agent shall have received (a) a certificate or certificates of an independent
insurance broker or carrier reasonably satisfactory to the Administrative Agent
in confirmation thereof and (b) an insurance report prepared by the Insurance
Consultant in form and substance satisfactory to the Administrative Agent.
(k) Accounts; Funding of Reserves.
(i) The Accounts required under the Collateral Agency
Agreement shall have been established to the reasonable satisfaction of
the Administrative Agent, and the Borrower shall have executed and
delivered all relevant documents to be entered into with the Collateral
Agent with respect to the establishment of the Accounts.
(ii) The Borrower shall have funded the Debt Service Reserve
Account with the initial Debt Service Reserve Required Balance, other than
any portion thereof that will be wired by the Administrative Agent to the
Collateral Agent out of the
26
proceeds of the Borrowing of Term Loans or deposited therein by the
Collateral Agent from any reserve account maintained in respect of the
Indebtedness refinanced by the Term Loans; provided that in lieu of a cash
deposit to the Debt Service Reserve Account, the Borrower may fund all or
any portion of the initial Debt Service Reserve Required Balance with a
Debt Service Reserve Letter of Credit issued by an Acceptable Issuer
pursuant to Section 6.1(s) of this Agreement.
(l) Governmental Approvals And Material Contracts. All Governmental
Authorizations with respect to the operation of the businesses of the Borrower
and its Subsidiaries shall be in full force and effect without change or
amendment since the dates of their respective approval by the Administrative
Agent, except as consented to in writing by the Required Lenders or as otherwise
permitted pursuant to this Agreement. There shall not be any default under any
Material Contract or Governmental Authorization that could reasonably be
expected to have a Material Adverse Effect or permit any party to a Material
Contract to terminate such document or suspend its performance thereunder.
(m) Repayment of Indebtedness; Fees, Etc. The Administrative Agent
shall have received evidence satisfactory to it that (i) all existing
Indebtedness of the Borrower and its Subsidiaries has been or concurrently with
the Refinancing Term Loan Disbursement Date is being repaid in full (other than
Permitted Indebtedness), and (ii) the Borrower shall have paid (or shall
simultaneously pay with proceeds of the Borrowing) all fees, costs and other
expenses and all other amounts then due and payable pursuant to this Agreement.
(n) Prior Indebtedness. The Administrative Agent shall have received
evidence satisfactory to it of the termination and release of all liens and
security interests in and to the Collateral which had been granted to secure the
obligations of the Borrower in respect of the Indebtedness being refinanced by
the Term Loans.
(o) Bank Accounts. The Borrower shall have made appropriate
arrangements to cause all cash now or hereafter deposited in the master
disbursement account (account no. 3936827626) (the "master disbursement
account") held by MANA at Bank of America, N.A. to be transferred directly into
the Concentration Account no less frequently than on a daily basis; provided
that funds required to pay working capital costs may be retained in the master
disbursement account in amounts reasonably satisfactory to the Administrative
Agent.
(p) Other Documents, Etc. The Administrative Agent shall have
received such other assurances, certificates, documents, consents or opinions as
the Administrative Agent reasonably may require.
Section 4.2. Conditions Precedent to the Closing Date.
The occurrence of the Closing Date and the effectiveness of this Agreement
and the other Loan Documents described in clause (a) below as of the Closing
Date are subject to the satisfaction of the following conditions precedent:
27
(a) Loan Documents to be Delivered.
(i) The following documents shall have been duly authorized,
executed and delivered by the parties thereto, are in full force and
effect and originals thereof shall have been delivered to the
Administrative Agent and the Borrower:
(A) this Agreement; and
(B) a Note in favor of each Lender requesting a Note, each in
a principal amount equal to such Lender's Commitments
(ii) A copy of each Trajen FBO Lease and any other FBO Lease
in existence and not otherwise delivered to the Administrative Agent as of
the Refinancing Term Loan Disbursement Date, shall have been delivered to
the Administrative Agent, together with a certificate of a Responsible
Officer of the Borrower certifying as of the Trajen Acquisition Term Loan
Disbursement Date that each such FBO Lease delivered (A) is a true,
correct and complete copy of such document and (B) is in full force and
effect.
(b) Trajen Purchase Agreement. The Administrative Agent shall have
received a true, complete and correct copy of the Trajen Purchase Agreement,
together with all schedules and attachments, duly executed and delivered by the
parties thereto, in form and substance reasonably satisfactory to the Lead
Arrangers.
(c) Organizational Documents of the Borrower. The Administrative Agent
shall have received from or on behalf of the Borrower (i) the certificate of
incorporation of the Borrower, certified as of a recent date prior to the
Closing Date by the Secretary of State (or comparable public official) of its
state of incorporation, (ii) a certificate of good standing (or comparable
certificate), certified as of a recent date prior to the Closing Date by the
Secretary of State (or comparable public official) of its state of incorporation
stating that the Borrower is in good corporate and tax standing under the laws
of such state, (iii) a certificate of the Secretary or an Assistant Secretary
(or comparable officer) of the Borrower, dated the Closing Date, certifying that
(A) since December 12, 2005, there have been no changes to the bylaws of the
Borrower; (B) attached thereto are true and correct copies of resolutions duly
adopted by the board of directors of the Borrower (or other comparable enabling
action) and continuing in effect, which authorize the execution, delivery and
performance by the Borrower of the Amended and Restated Loan Agreement and the
other Loan Documents to be executed by the Borrower and the consummation of the
transactions contemplated thereby; and (C) there are no proceedings for the
dissolution or liquidation of the Borrower, and (iv) a certificate of the
Secretary or an Assistant Secretary (or comparable officer) of the Borrower,
dated the Closing Date, certifying the incumbency, signatures and authority of
the officers of the Borrower authorized to execute, deliver and perform the
Amended and Restated Loan Agreement and the other Loan Documents to be executed
by the Borrower.
(d) Opinions of Counsel. The Administrative Agent shall have received a
favorable written opinion, addressed to the Administrative Agent, the Collateral
Agent, the
28
Issuing Bank and each Lender, dated the Closing Date and
in form and substance satisfactory to the Administrative Agent with respect to
the Borrower and such matters as the Administrative Agent may reasonably
request.
(e) Financial Statements. The Borrower shall have delivered to the
Administrative Agent (i) audited Financial Statements of Trajen as of and for
the year most recently ended more than 90 days prior to the Closing Date
(prepared on a consolidated basis), and its unaudited Financial Statements as of
and for the fiscal quarter most recently ended more than 45 days prior to the
Closing Date (prepared on a consolidated basis), each of which shall be
certified by a Responsible Officer of the Borrower as being to his Actual
Knowledge, after due inquiry, complete and correct in all material respects and
fairly presenting the financial condition, results of operations and changes in
cash flows of Trajen and its Subsidiaries on such dates and for any interim
periods then ended, applied on a consistent basis, and (ii) a certificate by the
chief financial officer of the Borrower stating that to his Actual Knowledge,
after due inquiry, since the date of such Financial Statements and the date of
the Financial Statements previously delivered to the Lead Arrangers as of April
18, 2006, no event has occurred, and no condition exists, that has had, or could
reasonably be expected to have, a Material Adverse Effect.
(f) Disclosure Schedules. The Borrower shall have delivered to the
Administrative Agent draft disclosure schedules (the "Trajen Pro Forma
Schedules") which shall be prepared on a pro forma, "as of the Trajen
Acquisition Term Loan Disbursement Date" basis reflecting information relating
to the Trajen and its Subsidiaries after giving effect to the Trajen
Acquisition, or other disclosure (on such pro forma basis) of exceptions to the
representations and warranties and covenants set forth in the Loan Documents
relating to Trajen and its businesses, all of which shall have been approved by
the Administrative Agent. To the extent that the information in any such
disclosure is deemed by the Administrative Agent in its reasonable judgment to
be material, such information must be approved by the Lead Arrangers prior to
the Closing Date. The Borrower shall provide revised and consolidated
disclosures and exceptions as of the Trajen Acquisition Term Loan Disbursement
Date to the extent and on the terms of Section 4.3(t).
(g) No Default Or Event of Default. No Default or Event of Default
shall have occurred and be continuing and, with respect to any advance of
Revolving Loans, no Revolver Default or Revolver Event of Default, shall have
occurred.
(h) Independent Consultants' Reports. The Administrative Agent shall
have received copies of final reports prepared by the Technical Advisor, the
Environmental Consultant, the Model Auditor and the Insurance Consultant, which
reports shall be addressed to the Lenders (or for which reliance letters in
favor of the Lenders have been issued by the appropriate advisor or consultant)
and shall be satisfactory in form and substance to the Administrative Agent.
(i) Amendment Fees. The Borrower shall have paid to the
Administrative Agent for the account of the relevant Lenders the Amendment Fees.
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Section 4.3. Conditions Precedent to Borrowing of Trajen Acquisition Term
Loans.
The obligation of each Trajen Acquisition Term Loan Lender to advance
Trajen Acquisition Term Loans to fund the financing of a portion of the
acquisition and associated costs relating to the Trajen Acquisition on the
Trajen Acquisition Term Loan Disbursement Date is subject to the satisfaction of
the following conditions precedent:
(a) Loan Documents to be Delivered.
(i) The following documents shall have been duly
authorized, executed and delivered by the parties thereto (such
parties shall include, but not be limited to, the Loan Parties, the
Administrative Agent and the Collateral Agent) are in full force and
effect and originals thereof shall have been delivered to the
Administrative Agent and the Borrower:
(A) the Hedging Agreements described in Section 4.3(g)
below.
(B) a Pledge Agreement with respect to 100% of the
Equity Securities of Trajen, each Subsidiary of Trajen (other than
any such Subsidiary whose Equity Securities are not permitted to be
pledged pursuant to the FBO Lease to which it is a party) and any
other Person who has become a Loan Party subsequent to the
Refinancing Term Loan Disbursement Date;
(C) appropriate amendments to the Subsidiary Security
Agreement, the Subsidiary Guaranty, the Contribution Agreement and
any other Security Document necessary to reflect Trajen, each of the
Subsidiaries of Trajen and any other Person who has become a Loan
Party subsequent to the Refinancing Term Loan Disbursement Date, as
an additional Loan Party, each in form and substance satisfactory to
the Administrative Agent; and
(D) a grant of security interest in service marks or
other appropriate filing with respect to the grant of a security
interest in any intellectual property held by Trajen or any of its
Subsidiaries (the "Trajen Intellectual Property Security
Agreement"), in form and substance satisfactory to the
Administrative Agent.
(ii) A certificate of a Responsible Officer of the
Borrower shall have been delivered to the Administrative Agent
certifying as of the Trajen Acquisition Term Loan Disbursement Date
that (A) the copy of each FBO Lease delivered on the Closing Date is
a true, correct and complete copy of such document, (B) such FBO
Lease has not been amended, supplemented or otherwise modified since
the Closing Date, and (C) such FBO Lease remains in full force and
effect.
(b) Revised Base Case Projections. The Administrative Agent shall
have received Base Case Projections of the Borrower, substantially in form and
substance of the March 31, 2006 draft of the Base Case Projections provided to
the Administrative Agent, which Base Case Projections shall be revised so as to
give effect to the Trajen Acquisition and
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approved in a certification by the Model Auditor. The revised Base Case
Projections shall include therein projections of revenues, operating expenses,
cash flow, debt service, capital expenditures (which items shall be categorized
to show discretionary capital expenditures to be undertaken in the ordinary
course of business and Expansion Capital Expenditures) and other related items,
which projections in each case shall not be materially different in the
reasonable determination of the Administrative Agent from the corresponding
projections reflected in a financial model dated March 31, 2006 previously
delivered to the Initial Lenders, and shall be accompanied by a certification as
of the Trajen Acquisition Term Loan Disbursement Date by a Responsible Officer
of the Borrower that the Revised Base Case Projections are based on reasonable
assumptions and prepared in good faith taking into account all information known
to such officer, after due inquiry. The Administrative Agent shall have received
a report of the Model Auditor satisfactory to the Administrative Agent regarding
the Model Auditor's audit of the Base Case Projections.
(c) Revised Operating Budget. The Administrative Agent shall have
received an updated business plan and operating budget for the calendar year
2006 in form and substance consistent with the business plan and operating
budget previously provided to the Initial Lenders, showing in reasonable detail
all projected revenues and operating expenses (identifying separately capital
expenditures), debt service and other related items with respect to the Borrower
and its Subsidiaries (in each case, after giving effect to the Trajen
Acquisition) for such period on a monthly basis.
(d) Revised Pro Forma Balance Sheet. The Administrative Agent shall
have received a certified copy of a revised pro forma balance sheet setting
forth the assets and liabilities of the Borrower and its Subsidiaries on a
consolidated basis (after giving effect to the Trajen Acquisition), in form and
substance consistent with the pro forma balance sheet previously provided to the
Initial Lenders.
(e) Financial Statements, Financial Condition, etc. The Borrower
shall have delivered to the Administrative Agent:
(i) unaudited Financial Statements of Trajen as of and
for the fiscal quarter most recently ended more than 45 days prior
to the Trajen Acquisition Term Loan Disbursement Date (prepared on a
consolidated basis), which shall be certified by a Responsible
Officer of the Borrower as being to his Actual Knowledge, after due
inquiry, complete and correct in all material respects and fairly
presenting the financial condition, results of operations and
changes in cash flows of Trajen and its Subsidiaries on such dates
and for any interim periods then ended, applied on a consistent
basis;
(ii) a certificate by the chief financial officer of the
Borrower stating that to his Actual Knowledge, after due inquiry,
since the date of such Financial Statements, no event has occurred,
and no condition exists, that has had, or could reasonably be
expected to have, a Material Adverse Effect;
(iii) a certificate by the chief financial officer of
the Investor as to the financial condition and solvency of the
Investor and the Borrower and its
31
Subsidiaries (after giving effect to the Executive Air Acquisition,
the General Aviation Acquisition, the EARL Acquisition, the Amports
Acquisition and the Trajen Acquisition and the incurrence of
Indebtedness relating thereto); and
(iv) such other financial, business and other
information regarding the Investor, the Borrower or any of their
Subsidiaries as the Administrative Agent, the Issuing Bank or any
Lender may reasonably request, including information as to possible
contingent liabilities, tax matters, environmental matters and
obligations for employee benefits and compensation.
(f) Additional Capital Contributions. The Administrative Agent shall
have received evidence that the Borrower shall have received the cash proceeds
of equity contributions to the Borrower from the Investor in an amount not less
than $175,000,000 (exclusive of similar contributions made prior to the
Borrowing of Refinancing Term Loans), which amount shall be increased dollar for
dollar for any increase in the Purchase Price (as defined in the Trajen Purchase
Agreement).
(g) Hedging Agreements. The Borrower shall have entered into Hedging
Agreements satisfactory to the Administrative Agent, and novation arrangements
on terms acceptable to the participating Hedging Banks, which agreements and
arrangements shall provide coverage in a notional amount equal to at least 100%
of the aggregate Term Loans advanced on the Refinancing Term Loan Disbursement
Date and the Trajen Acquisition Term Loan Disbursement Date for the remaining
term of the Term Loans through the Maturity Date.
(h) Transfer of Capital Stock of Trajen. The Investor shall have
sold, conveyed, assigned, transferred and delivered all of its right, title and
interest in and to 100% of the issued and outstanding capital stock of Trajen
Holdings, Inc. to the Borrower, free and clear of all Liens, and the
Administrative Agent shall have received satisfactory evidence thereof.
(i) Conditions Precedent Under Trajen Purchase Agreement. All
conditions precedent to the Closing (as such term is defined in the Trajen
Purchase Agreement) set forth in Article VIII of the Trajen Purchase Agreement
shall have been satisfied or otherwise waived and the Administrative Agent shall
have received from the Borrower a certificate dated the Trajen Acquisition Term
Loan Disbursement Date by a Responsible Officer of the Borrower certifying as
such; provided that any waiver of any condition precedent in the Trajen Purchase
Agreement granted by the Investor in its capacity as purchaser under the Trajen
Purchase Agreement shall have been approved by the Administrative Agent acting
at the direction of the Lead Arrangers (such approval not to be unreasonably
withheld, delayed or conditioned).
(j) Payment of Purchase Price, Fees; Repayment of Indebtedness. The
Administrative Agent shall have received evidence satisfactory to it that (i)
the Purchase Price (as such term is defined in the Trajen Purchase Agreement)
has been paid in full, other than any adjustment thereto in accordance with the
Trajen Purchase Agreement that is not yet due and payable; (ii) all existing
Indebtedness of the Borrower and its Subsidiaries (including Trajen and its
Subsidiaries after giving effect to the Trajen Acquisition and any other Person
who has become a Loan party subsequent to the Refinancing Term Loan Disbursement
Date) has been or concurrently with the Trajen Acquisition Term Loan
Disbursement Date is being repaid in full
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(other than Permitted Indebtedness), and all liens and security interests in and
to the Collateral which had been granted to secure the obligations of any of
such Subsidiaries of the Borrower in respect of any such Indebtedness have been
terminated and released; and (iii) the Borrower shall have paid (or shall
simultaneously pay with proceeds of the Borrowing of Trajen Acquisition Term
Loans) all fees, costs and other expenses and all other amounts then due and
payable pursuant to this Agreement. The Closing (as such term is defined in the
Trajen Purchase Agreement) shall occur concurrently with the disbursement of the
Borrowing of Trajen Acquisition Term Loans.
(k) Organizational Documents. The Administrative Agent shall have
received from or on behalf of the Borrower, Trajen, each of the Subsidiaries of
Trajen and any other Person who has become a Loan Party subsequent to the
Refinancing Term Loan Disbursement Date:
(i) the certificate of incorporation, articles of
incorporation, certificate of limited partnership, articles of
organization or comparable document of such Loan Party, certified as
of a recent date prior to the Trajen Acquisition Term Loan
Disbursement Date by the Secretary of State (or comparable public
official) of its state of incorporation or formation;
(ii) a certificate of good standing (or comparable
certificate), certified as of a recent date prior to the Trajen
Acquisition Term Loan Disbursement Date by the Secretary of State
(or comparable public official) of its state of incorporation or
formation stating that such Loan Party is in good corporate and tax
standing under the laws of such states;
(iii) a certificate of the Secretary or an Assistant
Secretary (or comparable officer) of such Loan Party, dated the
Trajen Acquisition Term Loan Disbursement Date, certifying that (I)
attached thereto is a true and correct copy of the bylaws,
partnership agreement, limited liability company agreement or
comparable document of such Loan Party as in effect on the Trajen
Acquisition Term Loan Disbursement Date; (II) attached thereto are
true and correct copies of resolutions duly adopted by the board of
directors or other governing body of such Loan Party (or other
comparable enabling action) and continuing in effect, which
authorize the execution, delivery and performance by such Loan Party
of the Loan Documents to be executed by such Loan Party and the
consummation of the transactions contemplated thereby; and (III)
there are no proceedings for the dissolution or liquidation of such
Loan Party; and
(iv) a certificate of the Secretary or an Assistant
Secretary (or comparable officer) of such Loan Party, dated the
Trajen Acquisition Term Loan Disbursement Date, certifying the
incumbency, signatures and authority of the officers of such Loan
Party authorized to execute, deliver and perform the Loan Documents
to be executed by such Loan Party.
(l) Security Documents. All filings and recordings necessary, in the
opinion of the Administrative Agent, to perfect the security interests
contemplated to be granted to the
33
Administrative Agent and the Collateral Agent under the Security Documents,
including the mortgages and deeds of trust referred to in Section 4.3(j) below,
shall have been made, and the Administrative Agent shall have received evidence
satisfactory to it that the Security Documents are in full force and effect and
the Liens contemplated by the Security Documents are perfected and of first
priority (except for any such prior Liens which are expressly permitted by this
Agreement to be prior). The Administrative Agent shall have received:
(i) Uniform Commercial Code search certificates from the
jurisdictions in which Uniform Commercial Code financing statements
are to be filed reflecting no other financing statements or filings
which evidence Liens of other Persons in Collateral acquired
subsequent to the Refinancing Term Loan Disbursement Date which are
prior to the Liens granted to the Administrative Agent in this
Agreement, the Security Documents and the other Loan Documents,
except for any such prior Liens (a) which are expressly permitted by
this Agreement to be prior or (b) for which the Administrative Agent
has received a termination statement;
(ii) such other documents, instruments and agreements as
the Administrative Agent may reasonably request to create and
perfect the Liens granted to the Administrative Agent or any Lender
in this Agreement, the Security Documents and the other Loan
Documents; and
(iii) such other evidence as the Administrative Agent
may request to establish that the Liens granted to the
Administrative Agent or any Lender in this Agreement, the Security
Documents and the other Loan Documents are perfected and prior to
the Liens of other Persons in the Collateral, except for any such
Liens which are expressly permitted by this Agreement to be prior.
(m) Leasehold Mortgages. To the extent that a Trajen FBO Lease
permits the granting of a Lien in the leasehold interest under such FBO Lease
without the consent of the relevant Airport Authority, a mortgage or deed of
trust, as applicable, securing the Obligations in favor of the Secured Parties
with respect to such leasehold interest shall have been duly executed and
recorded with the appropriate real estate filing office, and the Borrower shall
have delivered to the Administrative Agent a true and complete copy of each such
mortgage or deed of trust.
(n) Lien Searches. The Administrative Agent shall have received (i)
the results of all UCC, judgment and lien searches with respect to Trajen and
its Subsidiaries in form and substance satisfactory to the Administration Agent,
and (ii) a bringdown of all UCC, judgment and lien searches previously performed
with respect to the Borrower, the Investor and each other Loan Party other than
Trajen and its Subsidiaries.
(o) Consents. All approvals and consents (including management,
credit and other internal approvals of the Loan Parties) necessary to consummate
the transactions contemplated by the Loan Documents and the Trajen Acquisition
Agreement shall have been duly obtained and shall be in full force and effect
and in form and substance satisfactory to each of the Loan Parties party thereto
and the Administrative Agent shall have received a copy of such approval or
consent certified by the applicable Loan Party.
34
(p) Opinions of Counsel. The Administrative Agent shall have
received favorable written opinions, addressed to the Administrative Agent, the
Collateral Agent, the Issuing Bank and each Lender, dated the Trajen Acquisition
Term Loan Disbursement Date and in form and substance satisfactory to the
Administrative Agent with respect to Trajen, each of the Subsidiaries of Trajen
and each other Person who has become a Loan Party subsequent to the Refinancing
Term Loan Disbursement Date, and such matters as the Administrative Agent may
reasonably request.
(q) Insurance. All insurance required to be maintained by the
Borrower under Section 6.1(e) shall be in full force and effect, all premiums
then due and payable in connection therewith shall have been paid, such
insurance shall not be subject to cancellation without prior notice to the
Administrative Agent and Lenders and shall otherwise conform to the requirements
for such insurance under Section 6.1(e), and the Administrative Agent shall have
received a certificate or certificates of an independent insurance broker or
carrier reasonably satisfactory to the Administrative Agent in confirmation
thereof.
(r) Governmental Approvals and Material Contracts. All Governmental
Authorizations with respect to operation of the businesses of the Borrower and
its Subsidiaries (including Trajen and its Subsidiaries after giving effect to
the Trajen Acquisition and any other Person who has become a Loan Party
subsequent to the Refinancing Term Loan Disbursement Date) shall be in full
force and effect without change or amendment since the dates of their respective
approval by the Administrative Agent, except as consented to in writing by the
Required Lenders or as otherwise permitted pursuant to this Agreement. There
shall not be any default under any Material Contract or any Governmental
Authorization that could reasonably be expected to have a Material Adverse
Effect or permit any party to a Material Contract to terminate such document or
suspend its performance thereunder.
(s) Representation and Warranties. The representations and
warranties set forth in Article VI of the Trajen Purchase Agreement shall be
true and correct in all material respects. The Borrowing of Term Loans on the
Trajen Acquisition Term Loan Disbursement Date shall be deemed to be a
representation and warranty by the Borrower that each of such representations
and warranties is, to the Actual Knowledge of the Borrower, after due inquiry,
true and correct as of the date of such Borrowing.
(t) Disclosure Schedules. The Borrower shall have delivered to the
Administrative Agent revised, consolidated disclosure schedules to be attached
to this Agreement or other disclosure of exceptions to the representations and
warranties and covenants set forth in the Loan Documents relating to the
Borrower and its Subsidiaries, including Trajen and its Subsidiaries and
businesses, all of which shall have been approved by the Administrative Agent.
To the extent that the information in any such disclosure is deemed by the
Administrative Agent in its reasonable judgment to be material, such information
must be approved by the Lead Arrangers prior to the Trajen Acquisition Term Loan
Disbursement Date. Upon delivery to the Administrative Agent on the Trajen
Acquisition Term Loan Disbursement Date, the revised, consolidated schedules
that are delivered in accordance with this Section shall be deemed to have
replaced and superseded the Trajen Pro Forma Schedules and the schedules
attached to this Agreement as of the Closing Date.
35
(u) Environmental Liability. The Administrative Agent shall have
obtained no notice or knowledge of any liability under any Environmental Laws of
Trajen or any of Trajen's current or former Subsidiaries, which, individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect, other than any such liability identified in the final reports of the
Environmental Consultant delivered to the Administrative Agent on or prior to
the Closing Date pursuant to Section 4.2(h) hereof.
(v) Bank Accounts. The Borrower shall have delivered to the
Administrative Agent signed copies of irrevocable standing instructions that
have been or will be delivered to each depositary bank at which Trajen or any of
its Subsidiaries maintains a deposit account as of the Trajen Term Loan
Disbursement Date, which instructions shall direct the automatic transfer of all
cash in such account (other than an amount to be agreed upon with the
Administrative Agent to be reserved for working capital purposes, if necessary)
directly to the Concentration Account not less frequently than on a daily basis.
(w) Other Documents, etc. The Administrative Agent shall have
received such other assurances, certificates, documents, consents or opinions as
the Administrative Agent reasonably may require.
Section 4.4. Conditions Precedent to All Loans.
The obligation of each Lender to advance Loans on a Disbursement Date,
other than a Loan resulting from a Drawing on a Letter of Credit as provided in
Section 2.13, is subject to the satisfaction of the following conditions
precedent:
(a) Initial Revolving Loan Borrowing And Letter of Credit. With
respect to the initial Borrowing of Revolving Loans and the initial issuance of
a Letter of Credit pursuant to Section 2.13, the Borrowing of Term Loans shall
have occurred or shall concurrently occur.
(b) Borrowing Request. The Administrative Agent shall have timely
received a fully executed copy of a Borrowing Request for the applicable
Disbursement Date, as the case may be, in compliance with the requirements of
Section 2.1 or Section 2.2, as applicable.
(c) Representation And Warranties. All representations and
warranties of the Borrower and the other Loan Parties, as the case may be,
contained in the Loan Documents shall be true, correct and accurate on and as of
the applicable Disbursement Date (except to the extent such representations and
warranties relate to an earlier date, in which case, such representations and
warranties shall be true in all material respects as of such date).
(d) No Default Or Event of Default. No Default or Event of Default
shall have occurred and be continuing, and with respect to any advance of
Revolving Loans, no Revolver Default or Revolver Event of Default, shall have
occurred.
(e) No Material Adverse Change. Since the date of the most recent
audited Financial Statements provided to the Administrative Agent, no event or
circumstance shall have occurred which, individually or in the aggregate, has
had or could reasonably be expected to have a Material Adverse Effect.
36
(f) Debt Service Reserve Account. The Borrower shall have funded the
Debt Service Reserve Account in an amount equal to not less than the Debt
Service Reserve Required Balance, other than any portion thereof that will be
wired by the Administrative Agent to the Collateral Agent out of the proceeds of
a Borrowing of Loans; provided that in lieu of a cash deposit to the Debt
Service Reserve Account, the Borrower may fund all or any portion of the Debt
Service Reserve Required Balance with a Debt Service Reserve Letter of Credit
issued by an Acceptable Issuer pursuant to Section 6.1(s) of this Agreement.
Each Borrowing shall be deemed to be a representation and warranty by the
Borrower that each of the statements set forth above in clauses (c) through (f)
of this Section 4.2 is true and correct as of the date of such Borrowing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Administrative Agent
and the Lenders that:
Section 5.1. Due Incorporation, Qualification, etc.
Each Loan Party (i) is a corporation, partnership or limited liability
company duly organized, validly existing and in good standing under the laws of
its jurisdiction of incorporation or formation; (ii) has the power and authority
to own, lease and operate its properties and carry on its business as now
conducted; and (iii) is duly qualified, licensed to do business and in good
standing as a foreign corporation, partnership or limited liability company, as
applicable, in each jurisdiction where its ownership, lease or operation of
Property or the conduct of its business requires such qualification or license
and where the failure to be so qualified or licensed is reasonably likely to
have a Material Adverse Effect.
Section 5.2. Authority.
The execution, delivery and performance by each Loan Party of each Loan
Document executed, or to be executed, by such Loan Party and the consummation of
the transactions contemplated thereby (i) are within the power of such Loan
Party and (ii) have been duly authorized by all necessary actions on the part of
such Loan Party.
Section 5.3. Enforceability.
Each Loan Document executed, or to be executed, by each Loan Party has
been, or will be, duly executed and delivered by such Loan Party and
constitutes, or will constitute, a legal, valid and binding obligation of such
Loan Party, enforceable against such Loan Party in accordance with its terms,
except as limited by bankruptcy, fraudulent conveyance, insolvency or other laws
of general application relating to or affecting the enforcement of creditors'
rights generally and general principles of equity.
37
Section 5.4. Non-Contravention.
The execution and delivery by each Loan Party of the Loan Documents
executed by such Loan Party and the performance and consummation of the
transactions contemplated thereby do not (i) contravene such Loan Party's
organizational documents; (ii) violate any Legal Requirement applicable to such
Loan Party; (iii) violate any provision of, or result in the breach or the
acceleration of, or entitle any other Person to accelerate (whether after the
giving of notice or lapse of time or both), any Contractual Obligation of such
Loan Party or (iv) result in the creation or imposition of any Lien (or the
obligation to create or impose any Lien) upon any Property, asset or revenue of
such Loan Party (except such Liens as may be created in favor of the
Administrative Agent for the benefit of itself and the Lenders pursuant to this
Agreement or the other Loan Documents).
Section 5.5. Approvals; No Other Business.
(a) Except as set forth on Schedule 5.5, no material consent,
approval, order or authorization of, or registration, declaration or filing
with, any Governmental Authority or other Person (including equity holders of
any Person) is required in connection with the execution, delivery or
performance of the Loan Documents executed by any Loan Party or consummation of
the transactions contemplated thereby, except for those which have been made or
obtained and are in full force and effect.
(b) All Governmental Authorizations required for the ownership,
leasing, operation and maintenance of the businesses of the Borrower and its
Subsidiaries have been duly obtained and are in full force and effect without
any known conflict with the rights of others and free from any unduly burdensome
restrictions, except where any such failure to obtain such Governmental
Authorizations or any such conflict or restriction could not reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect. None of the Borrower or any of its Subsidiaries has Actual Knowledge of
any notice or other communication from any Governmental Authority regarding (A)
any revocation, withdrawal, suspension, termination or modification of, or the
imposition of any material conditions with respect to, any Governmental
Authorization, or (B) any other limitations on the conduct of business by any
such Loan Party, except where any such revocation, withdrawal, suspension,
termination, modification, imposition or limitation could not reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect.
(c) Except as set forth on Schedule 5.5, no Governmental
Authorization is required for either (A) the pledge or grant by any Loan Party
of the Liens purported to be created in favor of the Collateral Agent for the
benefit of the Secured Parties in connection herewith or any other Loan Document
or (B) the exercise by the Collateral Agent of any rights or remedies in respect
of any Collateral (whether specifically granted or created pursuant to any of
the Security Documents or created or provided for by any Governmental Rule),
except for (1) such Governmental Authorizations that have been obtained and are
in full force and effect and fully disclosed to Administrative Agent in writing,
and (2) filings or recordings contemplated in connection with this Agreement or
any Security Document.
38
(d) None of the Borrower or any of its Subsidiaries engages, either
directly or indirectly, in any business other than the businesses conducted by
the Borrower and its Subsidiaries as of the Closing Date or any business
substantially related or incidental thereto.
Section 5.6. No Violation or Default.
(a) None of the Borrower or any of its Subsidiaries is in violation
of or in default with respect to (i) any Legal Requirement applicable to such
Person or (ii) any Contractual Obligation of such Person (nor is there any
waiver in effect which, if not in effect, would result in such a violation or
default), where, in each case, such violation or default is reasonably likely to
have a Material Adverse Effect.
(b) Without limiting the generality of the foregoing, none of the
Borrower or any of its Subsidiaries (A) has violated any Environmental Laws, (B)
has any liability under any Environmental Laws or (C) has Actual Knowledge of an
investigation or is under investigation by any Governmental Authority having
authority to enforce Environmental Laws, where such violation, liability or
investigation is reasonably likely to have a Material Adverse Effect.
(c) No Default or Event of Default has occurred and is continuing.
Section 5.7. Litigation.
Except as set forth in Schedule 5.7, no actions (including derivative
actions), suits, proceedings (including arbitration proceedings or mediation
proceedings) or investigations are pending or threatened against any of the Loan
Parties at law or in equity in any court, arbitration proceeding or before any
other Governmental Authority which (i) if adversely determined, could reasonably
be expected (alone or in the aggregate) to have a Material Adverse Effect or
(ii) seek to enjoin, either directly or indirectly, any of the Acquisitions or
the execution, delivery or performance by any Loan Party of the Loan Documents
or the transactions contemplated thereby.
Section 5.8. Possession Under Leases; Title.
(a) Schedule 5.8 lists all material oral or written leases,
including the FBO Leases, subleases, licenses, concession agreements or other
use or occupancy agreements pursuant to which the Borrower and its Subsidiaries
lease to or from any other party any real property, including all renewals,
extensions, modifications or supplements to any of the foregoing or
substitutions for any of the foregoing (collectively, the "LEASES"), and, if
applicable, identifies each of the municipal airports to which they relate. The
Borrower and its Subsidiaries have complied with all material obligations under
all leases to which they are a party and enjoy peaceful and undisturbed
possession under such leases. Neither the Borrower nor any of its Subsidiaries
own any real property.
(b) The Borrower and its Subsidiaries own and have good and
marketable title, or a valid leasehold interest in, all Property necessary in
their businesses as currently conducted and as currently proposed to be
conducted. Such Properties are subject to no Liens other than Permitted Liens.
39
Section 5.9. Financial Statements.
The Financial Statements of the Borrower and its Subsidiaries (prepared on
a consolidated basis) which have been delivered to the Administrative Agent in
accordance with Section 6.1, (i) are in accordance with the books and records of
such Loan Parties, which have been maintained in accordance with good business
practice; (ii) have been prepared in conformity with GAAP subject in the case of
unaudited Financial Statements only to normal year-end audit adjustments and the
absence of footnotes, none of which, if provided, would reflect a material
adverse change in the business, assets, financial condition or operating
performance of such Loan Parties taken as a whole; and (iii) fairly present in
all material respects the financial conditions and results of operations of such
Loan Parties, respectively, as of the date thereof and for the period covered
thereby. Neither the Borrower nor any of its Subsidiaries have any contingent
obligations, liability for taxes or other outstanding obligations (including
obligations in respect of off-balance sheet transactions) required to be shown
on an annual or quarterly Financial Statement, as applicable, in accordance with
GAAP, which, in any such case, are material in the aggregate, except as
disclosed in the audited Financial Statements dated December 31, 2004, furnished
to the Administrative Agent prior to the Closing Date, or in the Financial
Statements delivered to the Administrative Agent pursuant to clause (i) or (ii)
of Section 6.1(a) or otherwise disclosed in writing to the Administrative Agent.
Section 5.10. Creation, Perfection and Priority of Liens.
Except as set forth on Schedule 5.10, as of the Closing Date, (i) the
execution and delivery of the Loan Documents by the Loan Parties, together with
the filing of any Uniform Commercial Code financing statements and the recording
of the U.S. Patent and Trademark Office filings delivered to the Administrative
Agent for filing and recording, and the recording of any mortgages or deeds of
trust delivered to the Administrative Agent for recording (but not yet
recorded), are effective to create in favor of the Collateral Agent for the
benefit of the Secured Parties, as security for the Obligations, a valid and
perfected first priority Lien on all of the Collateral as of the Closing Date
(subject only to Permitted Liens), and (ii) all filings and other actions
necessary or desirable to perfect and maintain the perfection and first priority
status of such Liens have been duly made or taken and remain in full force and
effect.
Section 5.11. Equity Securities.
All outstanding Equity Securities of the Borrower and its Subsidiaries are
duly authorized, validly issued, fully paid and non-assessable. There are no
outstanding subscriptions, options, conversion rights, warrants or other
agreements or commitments of any nature whatsoever (firm or conditional)
obligating any such Loan Party to issue, deliver or sell, or cause to be issued,
delivered or sold, any additional Equity Securities of any such Loan Party, or
obligating any such Loan Party to grant, extend or enter into any such agreement
or commitment. All Equity Securities of each such Loan Party have been offered
and sold in compliance with all federal and state securities laws and all other
Legal Requirements, except where any failure to comply is not reasonably likely
to have a Material Adverse Effect.
40
Section 5.12. No Agreements to Sell Assets; Etc.
Neither the Borrower nor any of its Subsidiaries have any legal
obligation, absolute or contingent, to any Person to sell the assets of such
Loan Party (except as permitted by Section 6.2(c)), or to effect any merger,
consolidation or other reorganization of any such Loan Party (except as
permitted by Section 6.2(d)) or to enter into any agreement with respect
thereto.
Section 5.13. Employee Benefit Plans.
(a) Except as set forth on Schedule on Schedule 5.13, no Employee
Benefit Plan is a Plan. Except as set forth on Schedule 5.13, as of the Closing
Date, neither the Borrower nor any of its Subsidiaries have (i) any liability
with respect to any post-retirement benefit under any Employee Benefit Plan
which is an employee welfare benefit plan (as defined in section 3(1) of ERISA),
other than liability for health plan continuation coverage described in Part 6
of Title I of ERISA, or (ii) any liability which is reasonably expected to have
a Material Adverse Effect.
(b) Except for compliance failures which may be corrected under the
Employee Plans Compliance Resolution System without a Material Adverse Effect,
each Employee Benefit Plan complies, in both form and operation, in all material
respects, with its terms, ERISA and the IRC, and, to the knowledge of the
Borrower, no condition exists or event has occurred with respect to any such
plan which would result in the incurrence by the Borrower or any of its
Subsidiaries or any ERISA Affiliate of any liability, fine or penalty which
would result in a Material Adverse Effect. Each Employee Benefit Plan, related
trust agreement, arrangement and commitment of the Borrower or any of its
Subsidiaries or any ERISA Affiliate is legally valid and binding and in full
force and effect, except to the extent that the failure to be so legally valid,
binding, and in full force and effect could not reasonably be expected to have a
Material Adverse Effect. To the best knowledge of the Borrower or any other Loan
Party, as of the Closing Date no Employee Benefit Plan is being audited or
investigated by any government agency or is subject to any pending or threatened
material claim or suit, other than claims for benefits in the ordinary course.
None of the Borrower or its Subsidiaries, or, to the best knowledge of the
Borrower, the ERISA Affiliates or any fiduciary of any Employee Benefit Plan
has, individually or in the aggregate, engaged in a prohibited transaction under
section 406 of ERISA or section 4975 of the IRC which would result in a Material
Adverse Effect to the Loan Parties, taken as a whole.
(c) Except as set forth on Schedule 5.13, none of the Borrower or
any of its Subsidiaries or the ERISA Affiliates contributes to or has any
material contingent obligations to any Multiemployer Plan. None of the Borrower
or any of its Subsidiaries or the ERISA Affiliates has any material liability
(including secondary liability) to any Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan under section 4201
of ERISA or as a result of a sale of assets described in section 4204 of ERISA,
which liability could reasonably be expected to have a Material Adverse Effect.
None of the Borrower or any of its Subsidiaries or the ERISA Affiliates has been
notified that any Multiemployer Plan is in reorganization or insolvent under and
within the meaning of section 4241 or section 4245 of ERISA or that any
Multiemployer Plan intends to terminate or has been terminated under section
4041A of ERISA, except to the extent that such event could not reasonably be
expected to have a Material Adverse Effect.
41
Section 5.14. Other Regulations.
Neither the Borrower nor any of its Subsidiaries is subject to regulation
under the Investment Company Act of 1940, the Public Utility Holding Company Act
of 1935, the Federal Power Act, the Interstate Commerce Act, any state public
utilities code or to any other Governmental Rule limiting its ability to incur
Indebtedness.
Section 5.15. Patent and Other Rights.
The Borrower and its Subsidiaries own, license or otherwise have the full
right to use, under validly existing agreements, all material patents, licenses,
trademarks, trade names, trade secrets, service marks, copyrights and all rights
with respect thereto, which are required to conduct their businesses as now
conducted, except where the failure to own, license or otherwise have the full
right to use could not reasonably be expected to result in a Material Adverse
Effect. Each of the patents, trademarks, trade names, service marks and
copyrights owned by any such Loan Party which is registered with any
Governmental Authority is set forth on Schedule 5.15. The Borrower and its
Subsidiaries conduct their respective businesses without infringement or, to the
best of the Borrower's knowledge, claim of infringement of any trademark, trade
name, trade secret, service mark, patent, copyright, license or other
intellectual property right of other Persons, except where such infringement or
claim of infringement could not reasonably be expected to have a Material
Adverse Effect. There is no infringement or, to the best of the Borrower's
knowledge, claim of infringement by others of any material trademark, trade
name, trade secret, service mark, patent, copyright, license or other
intellectual property right of any of such Loan Parties.
Section 5.16. Governmental Charges.
Each of the Borrower and its Subsidiaries has filed or caused to be filed,
all tax returns which are required to be filed by it. Each of the Borrower and
its Subsidiaries has paid, or made provision for the payment of, all taxes and
other Governmental Charges which have or may have become due pursuant to said
returns or otherwise and all other indebtedness, except such Governmental
Charges or indebtedness, if any, which are being contested in good faith and as
to which adequate reserves (determined in accordance with GAAP) have been
established. Proper and accurate amounts have been withheld by each such Loan
Party from its employees for all periods in full and complete compliance with
the tax, social security and unemployment withholding provisions of applicable
federal, state, local and foreign law and such withholdings have been timely
paid to the respective Governmental Authorities. Neither the Borrower nor any of
its Subsidiaries has executed or filed with the Internal Revenue Service or any
other Governmental Authority any agreement or other document extending, or
having the effect of extending, the period for assessment or collection of any
taxes or Governmental Charges.
Section 5.17. Margin Stock.
Neither the Borrower nor any of its Subsidiaries owns any Margin Stock
which, in the aggregate, would constitute a substantial part of the assets of
such Loan Party, and no proceeds of any Loan will be used to purchase or carry,
directly or indirectly, any Margin Stock or to
42
extend credit, directly or indirectly, to any Person for the purpose of
purchasing or carrying any Margin Stock.
Section 5.18. Subsidiaries, Etc.
Schedule 5.18 (as supplemented by the Borrower quarterly in a written
notice to the Administrative Agent) sets forth each of the Subsidiaries of the
Borrower, its jurisdiction of organization, the classes of its Equity
Securities, the number of shares of each such class issued and outstanding, the
percentages of shares of each such class owned directly or indirectly by the
Borrower and whether the Borrower owns such shares directly or, if not, the
Subsidiary of the Borrower that owns such shares and the number of shares and
percentages of shares of each such class owned directly or indirectly by the
Borrower. All of the outstanding Equity Securities of each such Subsidiary
indicated on Schedule 5.18 as owned by the Borrower are owned beneficially and
of record by the Borrower or a Subsidiary of the Borrower free and clear of all
Liens.
Section 5.19. Solvency, Etc.
Each of the Borrower and its Subsidiaries is Solvent and, after the
execution and delivery of the Loan Documents and the consummation of the
transactions contemplated thereby, will be Solvent.
Section 5.20. Labor Matters.
There are no disputes presently subject to grievance procedure,
arbitration or litigation under any of the collective bargaining agreements,
employment contracts or employee welfare or incentive plans to which any of the
Borrower or its Subsidiaries is a party, and there are no strikes, lockouts,
work stoppages or slowdowns, or, to the best knowledge of the Borrower,
jurisdictional disputes or organizing activities occurring or threatened which
alone or in the aggregate could reasonably be expected to have a Material
Adverse Effect.
Section 5.21. Contracts.
(a) Schedule 5.21 lists all of the following contracts ("CONTRACTS")
of the Borrower and each of its Subsidiaries as of the Closing Date:
(i) each partnership, joint venture or other similar material
agreement or arrangement to which any of the Borrower or its Subsidiaries
is a party with any third party;
(ii) each lease of real property to which any of the Borrower
or its Subsidiaries is a party, including all FBO Leases, and each lease
of personal property to which any of the Borrower or its Subsidiaries is a
party that in any such case has rent payable by such Loan Party after the
date hereof in excess of $100,000 during any twelve-month period;
(iii) each Management Contract and the Heliport Contract;
43
(iv) all other contracts and agreements relating to the
airport services businesses of the Borrower and its Subsidiaries pursuant
to which any of the Borrower or its Subsidiaries, individually or
collectively, are obligated to spend (whether by direct payment or through
rendering services or otherwise) or have a contractual right to receive
revenues in excess of, $100,000 during any twelve-month period;
(v) each agreement of the Borrower and its Subsidiaries
relating to indebtedness for borrowed money (whether incurred, assumed,
guaranteed or secured by any asset);
(vi) each contract containing covenants purporting to
materially limit the freedom of the Borrower or any of its Subsidiaries to
compete in any line of business or in any geographic area;
(vii) each material contract that is not for the purchase,
sale or license of goods or services in the ordinary course of business
consistent with past practice;
(viii) each policy of insurance; and
(ix) each other agreement which has aggregate expenditure
obligations of $150,000 or more to any Person.
(b) Each of the Material Contracts has a term and renewal period as
set forth in Schedule 5.21, such Material Contracts are in full force and
effect, are valid and binding, and enforceable against the Borrower and its
Subsidiaries, as applicable, and, to the best of the Borrower's knowledge, the
other parties thereto in accordance with their respective terms. Neither the
Borrower nor any of its Subsidiaries, nor, to the best of the Borrower's
knowledge, any other party to any such contract, is in default in the
performance of, or is not in compliance with, any material provision of any such
Material Contract, including any minimum service requirements under any Material
Contract, and no event has occurred that with the passage of time or the giving
of notice or both would constitute a default by the Borrower or any Subsidiary
or, to the best of the Borrower's knowledge, any other party under any material
provision thereof entitling the termination of such Material Contract. No
material right or rescission, setoff, counterclaim or defense has been asserted
and remains outstanding with respect to any Material Contract or Material
Contract Right. No Material Contract or Material Contract Right has been sold,
transferred, assigned or pledged (unless such pledge has been released prior to
the date hereof) by any of the Borrower or its Subsidiaries and have not been
pledged (unless such pledge has been released prior to the date hereof) by any
of their respective predecessors-in-interest in respect of any such Material
Contract to any Person other than the Collateral Agent for the benefit of the
Secured Parties.
(c) Except as disclosed in Schedule 5.21, no material supplier to or
landlord of any of the Borrower or its Subsidiaries, including any party to the
FBO Leases, Management Contracts or the Heliport Contract, or any Governmental
Authority, has taken, and neither the Borrower nor any of its Subsidiaries has
received, any written notice that, any material supplier to or landlord of any
of the Borrower or its Subsidiaries, including any party to any of the FBO
Leases, Management Contracts or the Heliport Contract, or any Governmental
Authority,
44
contemplates taking, any steps to terminate the business relationship of any of
the Borrower or its Subsidiaries with such supplier or landlord, including any
party to the FBO Leases, Management Contracts or the Heliport Contract, which
would reasonably be expected to have a Material Adverse Effect.
(d) None of the Borrower or its Subsidiaries or any of their
Properties are subject to any Contractual Obligation which is reasonably likely
to have a Material Adverse Effect.
Section 5.22. No Material Adverse Effect.
No event has occurred and no condition exists which is reasonably likely
to have a Material Adverse Effect.
Section 5.23. Accuracy of Information Furnished.
The representations set forth in the Loan Documents and the other
certificates, statements and information (excluding projections) furnished by
the Loan Parties to the Administrative Agent, the Collateral Agent, the Lenders
and advisors and agents of the Administrative Agent, the Collateral Agent and
the Lenders in connection with the Loan Documents and the transactions
contemplated thereby, taken as a whole, are true, complete and correct in all
material respects, do not contain any untrue statement of a material fact and do
not omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. All
projections furnished by the Loan Parties to the Administrative Agent and the
Lenders in connection with the Loan Documents, and the transactions contemplated
thereby have been prepared on a basis consistent with the historical financial
statements described above, except as described therein, have been based upon
reasonable assumptions and represent, as of their respective dates of
presentations, the Loan Parties' reasonable estimates of the future performance
of the Loan Parties.
Section 5.24. Brokerage Commissions.
No person other than Macquarie Securities (USA) Inc. ("MSUSA") is entitled
to receive any brokerage commission, finder's fee or similar fee or payment in
connection with the extensions of credit contemplated by this Loan Agreement as
a result of any agreement entered into by any Loan Party. No brokerage or other
fee, commission or compensation is to be paid by the Lenders with respect to the
extensions of credit contemplated hereby as a result of any agreement entered
into by a Loan Party, and the Borrower agrees to indemnify the Administrative
Agent and the Lenders against any such claims for brokerage fees or commissions
and to pay all expenses including, without limitation, reasonable attorney's
fees incurred by the Administrative Agent and the Lenders in connection with the
defense of any action or proceeding brought to collect any such brokerage fees
or commissions.
Section 5.25. Policies of Insurance.
Schedule 5.25 sets forth a true and complete listing of all insurance
maintained by the Borrower and its Subsidiaries as of the Closing Date. Such
insurance has not been terminated and is in full force and effect, and each of
such Loan Parties has taken all action required to be
45
taken as of the date of this Agreement to keep unimpaired its rights thereunder
in all material respects. The Properties of the Borrower and its Subsidiaries
are insured with financially sound and reputable insurance companies not
Affiliates of the Loan Parties in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrower and
its Subsidiaries operate.
Section 5.26. Bank Accounts and Securities Accounts.
Schedule 5.26 sets forth a true and complete listing of all bank accounts
and securities accounts maintained by the Borrower and its Subsidiaries as of
the Closing Date.
Section 5.27. Agreements with Affiliates and Other Agreements.
Except as disclosed on Schedule 5.27, none of the Borrower and its
Subsidiaries has entered into and, as of the Refinancing Term Loan Disbursement
Date and the Trajen Acquisition Term Loan Disbursement Date, does not
contemplate entering into, any material agreement or contract with any Affiliate
of such Person except upon terms at least as favorable to such Loan Party as an
arms-length transaction with unaffiliated Persons, based on the totality of the
circumstances. None of such Loan Parties is a party to or is bound by any
Contractual Obligation or is subject to any restriction under its respective
charter or formation documents, which could reasonably be expected to have a
Material Adverse Effect.
Section 5.28. No Indebtedness.
Except for Permitted Indebtedness and any Indebtedness described in
Schedule 5.28, neither the Borrower nor any of its Subsidiaries has created,
incurred, assumed or permitted to exist any Indebtedness or Guarantee
Obligations.
Section 5.29. Environmental Matters.
Except as disclosed in Schedule 5.29, (i) there are no facts,
circumstances, conditions or occurrences regarding any of the Borrower or its
Subsidiaries or their respective Properties that could reasonably be expected to
give rise to any Environmental Claims that could reasonably be expected to have
a Material Adverse Effect; (ii) there are no past, pending or, to the best of
the Borrower's knowledge, threatened Environmental Claims against any of such
Loan Parties or their respective Properties that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, and
(iii) neither the Borrower nor any of its Subsidiaries nor, to the best of the
Borrower's knowledge, any other Person, have used, released, discharged,
generated or stored any Hazardous Material at, on or under their respective
Properties, and there are no Hazardous Materials used or presently at, on or
under such Properties, except in compliance in all material respects with
applicable Environmental Laws.
Section 5.30. Fuel Payment Arrangements. Each Subsidiary of the Borrower
operating a Non-Eligible FBO is obligated to pay, and does pay, the purchase
price for aviation fuel within three (3) days after delivery, and each other
Subsidiary of the Borrower operating an FBO is obligated to pay, and does pay,
the purchase price for aviation fuel within seven (7) days
46
after delivery. All such aviation fuel is purchased on the basis of the
prevailing market price at the time of delivery.
ARTICLE VI
COVENANTS
Section 6.1. Affirmative Covenants.
Until the termination of the Commitments and the satisfaction in full by
the Borrower of all Obligations, the Borrower will comply with the following
affirmative covenants, unless the Required Lenders shall otherwise consent in
writing:
(a) Financial Statements; Operating Reports; Financial
Certifications. The Borrower shall furnish to the Administrative Agent and each
Lender the following:
(i) as soon as available and in no event later than ninety
(90) days after the close of each fiscal year of the Borrower, (A) copies
of the audited Financial Statements of the Borrower and its Subsidiaries
(which shall be prepared on a consolidated basis except in respect of the
Financial Statements for the 2006 fiscal year, for which separate
Financial Statements for Trajen and its Subsidiaries may be provided) for
such year, in the case of such consolidated Financial Statements, audited
by KPMG LLP or another recognized firm of independent certified public
accountants acceptable to the Administrative Agent (without a "going
concern" or like qualification or exception and without any qualification
or exception as to the scope of such audit) to the effect that such
Financial Statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
which Financial Statements shall be accompanied by a narrative from
management of the Borrower which discusses results for such period, and
(B) copies of the unqualified opinions and, to the extent delivered,
management letters delivered by such accountants in connection with all
such Financial Statements;
(ii) as soon as available and in no event later than
forty-five (45) days after the last day of each of the first three fiscal
quarters of each fiscal year of the Borrower, copies of the Financial
Statements of the Borrower and its Subsidiaries (which shall be prepared
on a consolidated basis except in respect of the Financial Statements for
the 2006 fiscal year, for which separate Financial Statements for Trajen
and its Subsidiaries may be provided) for such quarter and for the fiscal
year to date, certified by the president, chief financial officer or
treasurer of the Borrower to present fairly in all material respects the
financial condition, results of operations and other information reflected
therein and to have been prepared in accordance with GAAP (subject to
normal year-end audit adjustments and the absence of notes);
(iii) as soon as available and in no event later than thirty
(30) days after the last day of each calendar month, a copy of the monthly
operating report of the
47
Borrower and its Subsidiaries for such month and for the fiscal year to
date in the form previously provided to the Administrative Agent;
(iv) contemporaneously with the delivery of the Financial
Statements and the monthly operating report required by the foregoing
clauses (i), (ii) and (iii), a compliance certificate of the president,
chief financial officer or treasurer of the Borrower which states that no
Default or Event of Default has occurred and is continuing or, if any
Default or Event of Default has occurred and is continuing, a statement as
to the nature thereof and what action the Borrower proposes to take with
respect thereto;
(v) no later than thirty (30) days after each Calculation
Date, a certificate of the president, chief financial officer or treasurer
of the Borrower, in substantially the form of Exhibit D-1 (a "DEBT SERVICE
COVERAGE RATIO CERTIFICATION"), certifying as to the Backward Debt Service
Coverage Ratio for the Calculation Period ending on such Calculation Date
and the Forward Debt Service Coverage Ratio for the succeeding
twelve-month period commencing on the day following such Calculation Date,
together with reasonably detailed information and calculations attached
thereto supporting such certification;
(vi) no later than thirty (30) days after each Calculation
Date during the EBITDA Test Period, a certificate of the president, chief
financial officer or treasurer of the Borrower, in substantially the form
of Exhibit D-2 (an "EBITDA CERTIFICATION"), certifying as to the EBITDA
for the twelve-month period ending on such Calculation Date, together with
reasonably detailed information and calculations attached thereto
supporting such certification;
(vii) no later than thirty (30) days after each Calculation
Date during the Leverage Ratio Test Period, a compliance certificate of
the president, chief financial officer or treasurer of the Borrower in
substantially the form of Exhibit D-3 (a "LEVERAGE RATIO CERTIFICATION")
certifying as to the Leverage Ratio for the twelve months ending on such
Calculation Date, together with reasonably detailed information and
calculations attached thereto supporting such certification; and
(viii) contemporaneously with delivery of the Financial
Statements required by the foregoing clauses (i) and (ii), a certificate
of the president, chief financial officer or treasurer of the Borrower
attaching a statement of all Expansion Capital Expenditures made during
the previous fiscal quarter and the source of funds therefor and
certifying that all such expenditures complied with Section 6.2(r).
(b) Other Notices and Reports. The Borrower shall furnish to the
Administrative Agent and each Lender the following, each in such form and such
detail as the Administrative Agent or the Required Lenders shall reasonably
request:
(i) in no event later than five (5) Business Days after any of
the Borrower or its Subsidiaries knows of the occurrence or existence of
(A) any Reportable Event under any Plan or Multiemployer Plan, (B) any
actual or threatened litigation, suits, claims, disputes or investigations
against any of the Borrower or its Subsidiaries
48
involving potential monetary damages payable by any such Loan Party of
$500,000 or more (alone or in the aggregate) or in which injunctive relief
or similar relief is sought, which relief, if granted, could be reasonably
expected to have a Material Adverse Effect, (C) any other event or
condition which, either individually or in the aggregate, could be
reasonably expected to have a Material Adverse Effect, including (I)
breach or non-performance of, or any default under, a Contractual
Obligation of any of the Borrower or its Subsidiaries; (II) any dispute,
litigation, investigation, proceeding or suspension between any of the
Borrower or its Subsidiaries and any Governmental Authority or Airport
Authority; or (III) the commencement of, or any material development in,
any litigation or proceeding affecting any of the Borrower or its
Subsidiaries or any Material Contract, including pursuant to any
applicable Environmental Laws; (D) any Default or Event of Default, or (E)
any material change in accounting policies of or financial reporting
practices by the applicable Loan Party. Each notice pursuant to this
Section 6.1(b) shall be accompanied by a statement of a Responsible
Officer of the Borrower setting forth details of the occurrence referred
to therein and stating what action the Borrower has taken and proposes to
take with respect thereto. Each notice pursuant to this Section 6.1(b)
shall describe with particularity any and all provisions of this Agreement
or other Loan Document that have been breached;
(ii) as soon as available, and in any event not later than the
last Business Day of each fiscal year of the Borrower, (A) an annual
operating budget for the following fiscal year for each operational
location of the Borrower and its Subsidiaries, and (B) projected
consolidated Financial Statements of the Borrower and its Subsidiaries for
the following fiscal year;
(iii) as soon as available, and in any event not later than
forty-five (45) days following the last day of each fiscal quarter of the
Borrower, (i) a quarterly report from the chief executive officer of the
Borrower showing in reasonable detail any variances between actual
revenues and budgeted revenues (as shown in the relevant annual operating
budget) and actual operating expenses incurred and budgeted operating
expenses (as shown in the relevant annual operating budget) in respect of
such fiscal quarter, together with a narrative explanation of the reasons
for any such variance of 10% or more, and (ii) if an Event of Default has
occurred and is continuing, such other operating or budget information as
the Administrative Agent may reasonably request;
(iv) as soon as possible and in no event later than ten (10)
days prior to the acquisition or expansion by any of the Borrower or its
Subsidiaries of any material leasehold or ownership interest in real
property, a written supplement to Schedule 5.8;
(v) as soon as possible prior to the occurrence of any event
or circumstance that would require a prepayment pursuant to Section
2.8(c), a statement of a Responsible Officer of the Borrower setting forth
the details thereof;
(vi) (A) as soon as possible and in no event later than five
(5) Business Days after the receipt thereof by any of the Borrower or its
Subsidiaries, a copy of any notice, summons, citations or other written
communications concerning any actual, alleged, suspected or threatened
violation of any Environmental Law, or any
49
liability of any such Loan Party for Environmental Damages, where any such
violation is reasonably likely to involve compliance costs in excess of
$100,000 with respect to each such violation or to have a Material Adverse
Effect; and (B) promptly after the occurrence thereof, notice of (x) any
use, release, discharge, generation or storage of any Hazardous Material
at, from, on or under any property owned or leased by any of the Borrower
or its Subsidiaries that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect and (y) the
incurrence of any expense or loss by any Governmental Authority or Airport
Authority in connection with the assessment, containment or removal or
remediation of any Hazardous Material for which expense or loss,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect; and
(vii) copies of amendments, supplements or other modifications
to any Material Contract no later than 20 days after such amendment,
supplement or other modification has been made;
(viii) promptly and in no event later than five (5) days after
the applicable Loan Party obtains knowledge thereof, a statement of a
Responsible Officer of the Borrower advising of the potential loss or
termination of any Material Contract other than a termination resulting
from the expiration of a Material Contract at its stated maturity date,
unless such expiration is due to the failure of the FBO operator or the
relevant airport authority to exercise an option to extend the term under
the Material Contract;
(ix) as soon as possible and in no event later than five (5)
Business Days after any of the Borrower or its Subsidiaries becomes aware
thereof, the occurrence of any event giving rise (or that could reasonably
be expected to give rise) to a claim under any insurance policy required
to be maintained with respect to the Business of more than $250,000, with
copies of any document relating thereto (including copies of any such
claim) in the possession or control of the Borrower;
(x) such other instruments, agreements, certificates,
opinions, statements, documents and information relating to the
Properties, operations or condition (financial or otherwise) of the
Borrower and its Subsidiaries, and compliance by the Loan Parties with the
terms of this Agreement and the other Loan Documents as the Administrative
Agent may from time to time reasonably request.
(c) Books and Records. The Borrower shall keep, and shall cause each
of its Subsidiaries to keep, at all times proper books of record and account in
which full, true and correct entries will be made of their respective
transactions and assets and business in accordance with GAAP.
(d) Inspections. The Borrower shall permit, and shall cause each of
its Subsidiaries to permit, the Administrative Agent and each Lender, or any
agent or representative thereof, upon reasonable notice and during normal
business hours (except that if an Event of Default shall have occurred and be
continuing, no such notice is required), to visit and inspect any of the
properties and offices of the Borrower or its Subsidiaries, to conduct audits of
any or
50
all of the Collateral, to examine the books and records of the Borrower or its
Subsidiaries and make copies thereof, and to discuss the affairs, finances and
business of the Borrower or its Subsidiaries with, and to be advised as to the
same by, their officers, auditors and accountants, all at such times and
intervals as the Administrative Agent or any Lender may reasonably request. The
Borrower may have a representative attend any meeting with the Borrower's
independent accountants so long as such right does not unreasonably delay the
scheduling of any meeting. Inspections pursuant to this Section 6.1(d) shall be
at the Borrower's expense with respect to one (1) inspection in any calendar
year and with respect to all inspections and audits during the existence of a
Default or Event of Default.
(e) Insurance. The Borrower shall cause its Subsidiaries to do the
following:
(i) carry and maintain insurance during the term of this
Agreement of the types, in the amounts and subject to such deductibles and
other terms customarily carried from time to time by others engaged in
substantially the same business as such Person and operating in the same
geographic area as such Person, including, but not limited to, fire,
public liability, property damage and worker's compensation;
(ii) without limiting the foregoing, carry and maintain
insurance during the term of this Agreement of the types, in no lower
amounts and subject to no higher deductibles as are carried by the
Borrower and its Subsidiaries as of the Closing Date unless the
Administrative Agent shall have otherwise consented in writing (which
consent shall not be unreasonably withheld); provided that the Borrower
shall be permitted to consolidate the insurance policies carried by Trajen
and its Subsidiaries with the insurance policies currently carried by the
Borrower without violating this clause (ii); and provided, further, that
promptly following such consolidation, the Borrower shall submit to the
Administrative Agent an updated summary of all insurance coverage showing
changes to the insurance policies resulting from such consolidation, as
certified by a Responsible Officer of the Borrower, which summary must be
reasonably satisfactory to the Administrative Agent.
(iii) furnish to the Administrative Agent, upon written
request, certificates of insurance in a form reasonably acceptable to the
Administrative Agent as to the insurance carried;
(iv) carry and maintain each policy for such insurance with
(A) a company which is rated A- or better by A.M. Best and Company, with
unimpaired policyholders' surplus of $50 million or more, at the time such
policy is placed and at the time of each annual renewal thereof or (B) any
other insurer which is reasonably satisfactory to the Administrative
Agent; and
(v) obtain and maintain endorsements reasonably acceptable to
the Administrative Agent for such insurance naming the Administrative
Agent and the Collateral Agent as additional insured and (with respect to
those insurance policies in which the naming of a first loss payee is
market standard in the insurance industry with respect to airport services
businesses) the Collateral Agent as first loss payee; provided that, at
any time the Collateral Agent receives proceeds of any such insurance as
first loss
51
payee, the Administrative Agent shall promptly instruct the Collateral
Agent to apply such proceeds in accordance with Section 6.1(n); and
provided that if any of the Subsidiaries of the Borrower shall fail to maintain
insurance in accordance with this Section 6.1(e), or if any of the Subsidiaries
of the Borrower shall fail to provide the required endorsements with respect
thereto, the Administrative Agent shall have the right (but shall be under no
obligation) to procure such insurance and the Borrower agrees to reimburse the
Administrative Agent for all reasonable costs and expenses of procuring such
insurance. All such policies as to which the Collateral Agent is named as an
additional insured or loss payee, as the case may be, shall (i) provide that the
same shall not be cancelled, materially modified or terminated for non-payment
of any premium without at least ten (10) days' prior written notice to each
insured and each loss payee named therein (for war risks coverage, seven (7)
days or such lesser period as is customarily available), (ii) where commercially
available, contain a breach-of-warranty clause providing that the respective
interests of the Collateral Agent or any other additional insured or loss payee
shall not be invalidated by any action or inaction of the Collateral Agent, the
Lenders, the Administrative Agent or any other Person, (iii) insure the
Collateral Agent and any other additional insured or loss payee regardless of
any breach or violation by the Borrower or any of its Subsidiaries or any other
Person of any warranties, declarations, or conditions contained in the policies
related to such insurance, (iv) provide that the insurer thereunder waives all
right of subrogation against the Collateral Agent and waives any right of
set-off or counterclaim against the Collateral Agent and any other right of
deduction against the Collateral Agent, whether by attachment or otherwise;
provided, further, that the insurer may proceed against third parties at any
time and against the Borrower at such time as the Obligations are paid in full,
(v) be primary without right of contribution from any other insurance carried by
or on behalf of the Collateral Agent, any Lender or the Administrative Agent
with respect to any interest in the Collateral, (vi) provide that no Person
other than the Borrower or its Subsidiaries (or, to the extent an Airport
Authority is required under a Material Contract to pay premiums on behalf of the
Borrower or any of its Subsidiaries, such Airport Authority) shall have any
liability for any premiums with respect thereto, and (vii) provide that inasmuch
as the policies are written to cover more than one insured, all terms and
conditions, insuring agreements and endorsements, with the exception of limits
of liability, shall operate in the same manner as if there were a separate
policy covering each insured. The Administrative Agent shall not, by reason of
accepting, rejecting, approving or obtaining insurance incur any liability for
the existence, nonexistence, form or legal sufficiency thereof, the solvency of
any insurer, or the payment of any losses.
All proceeds of insurance policies provided or obtained by the Borrower or any
of its Subsidiaries (whether or not required to be carried under the Loan
Documents) other than with respect to coverage for business interruption,
anticipated loss in revenue, workers' compensation, employees' liability and
general liability, in respect of any Material Loss shall be paid by the
respective insurers directly to the Loss Proceeds Account or, if received by the
Borrower or any such Subsidiary, shall promptly be transferred to the Loss
Proceeds Account and disbursed in accordance with Section 6.2(n).
(f) Governmental Charges and Other Indebtedness. The Borrower shall,
and shall cause each of its Subsidiaries to, promptly pay and discharge when
due, or to the extent taxes are being filed and paid on a consolidated basis,
shall ensure that MIC promptly pays and
52
discharges when due, (i) all taxes and other Governmental Charges prior to the
date upon which penalties accrue thereon, (ii) all Indebtedness which, if
unpaid, could become a Lien upon the Property of such Loan Party and (iii)
subject to any subordination provisions applicable thereto, all other
Indebtedness which in each case, if unpaid, is reasonably likely to have a
Material Adverse Effect, except such Indebtedness, taxes or Governmental Charges
as may in good faith be contested or disputed, or for which arrangements for
deferred payment have been made; provided that in each such case appropriate
reserves are maintained to the reasonable satisfaction of the Administrative
Agent and no material Property of any such Loan Party is at impending risk of
being seized, levied upon or forfeited.
(g) Use of Proceeds. The Borrower shall use the proceeds of the
Loans only for the respective purposes set forth in Section 2.6. The Borrower
shall not use any part of the proceeds of any Loan, directly or indirectly, for
the purpose of purchasing or carrying any Margin Stock or for the purpose of
purchasing or carrying or trading in any securities under such circumstances as
to involve the Borrower, any Lender or the Administrative Agent in a violation
of Regulations T, U or X issued by the Federal Reserve Board.
(h) General Business Operations. The Borrower shall, and shall cause
each of its Subsidiaries to (i) preserve, renew and maintain in full force its
legal existence and good standing under the Governmental Rules of the
jurisdiction of its organization and each other jurisdiction where the failure
to so preserve, renew or maintain could result in a Material Adverse Effect, and
all of its rights, licenses, leases, qualifications, privileges franchises and
other authority reasonably necessary to the conduct of its business, (ii)
conduct its business activities in compliance with all Legal Requirements and
Contractual Obligations applicable to such Person, (iii) keep all Property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted and from time to time make, or cause to be made,
all necessary and proper repairs, except, in each case, where any failure,
either individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, (iv) maintain, preserve and protect all of its
rights to enjoy and use material trademarks, trade names, service marks,
patents, copyrights, licenses, leases, franchise agreements and franchise
registrations, (v) obtain and maintain all Governmental Authorizations that are
required of the Borrower and its Subsidiaries for the validity and
enforceability of the Loan Documents and the operation of the airport services
businesses pursuant to the Material Contracts, except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect, and (vi)
conduct its business in an orderly manner without voluntary interruption. The
Borrower shall maintain its chief executive office and principal place of
business in the United States.
(i) Compliance with Legal Requirements and Contractual Obligations;
Enforcement of Material Contracts. The Borrower shall, and shall cause each of
its Subsidiaries to, (A) comply with all applicable Legal Requirements,
including all applicable Environmental Laws, and Contractual Obligations
noncompliance with which could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect, and (B) perform and
observe, in all material respects, the terms and provisions of each Material
Contract to be performed or observed by any of the Borrower or its Subsidiaries
and enforce their respective rights under the Material Contracts in accordance
with their applicable terms to the extent a failure to enforce such rights can
reasonably be expected to result in a material detriment to the Borrower or its
Subsidiaries or the Business.
53
(j) Additional Collateral. If at any time from and after the Closing
Date any of the Borrower or its Subsidiaries acquires any fee or leasehold
interest in real property, such Loan Party shall deliver to the Administrative
Agent, at its own expense, as soon as possible all documentation and information
in form and substance reasonably satisfactory to the Administrative Agent
(including any environmental reports) relating thereto, and shall assist the
Administrative Agent in obtaining a deed of trust or mortgage on such real
property interest; provided that if such Loan Party is unable, after using
commercially reasonable efforts (as determined by it in good faith), to obtain
any required consent of an Airport Authority for the grant of a deed of trust or
mortgage in a leasehold interest in a lease for a fixed base operation, such
deed of trust or mortgage shall not be required under this Clause (j).
(k) New Subsidiaries. The Borrower shall, at its own expense,
promptly, and in any event within ten (10) Business Days after the formation or
acquisition of any new direct or indirect Subsidiary of the Borrower after the
date hereof (i) notify the Administrative Agent of such event, (ii) amend the
Security Documents as appropriate in light of such event to pledge to the
Collateral Agent for the benefit of the Secured Parties 100% of the Equity
Securities of each Person which becomes a Subsidiary after the date hereof and
execute and deliver all documents or instruments required thereunder or
appropriate to perfect the security interest created thereby, (iii) deliver to
the Collateral Agent all stock certificates and other instruments added to the
Collateral thereby free and clear of all Liens, accompanied by undated stock
powers or other instruments of transfer executed in blank, (iv) cause each
Person that becomes a direct or indirect Subsidiary of the Borrower after the
date hereof to guarantee the Obligations pursuant to documentation which is in
form and substance satisfactory to the Administrative Agent, (v) cause each such
Person that becomes a direct or indirect Subsidiary of the Borrower after the
date hereof to execute a pledge and security agreement in form and substance
satisfactory to the Administrative Agent, (vi) cause each document (including
each Uniform Commercial Code financing statement and each filing with respect to
intellectual property owned by each such Person that becomes a direct or
indirect Subsidiary of the Borrower after the date hereof) required by law or
reasonably requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Collateral Agent for the benefit of
the Secured Parties a valid, legal and perfected first-priority security
interest in the Collateral subject to the Security Documents to be so filed,
registered or recorded and evidence thereof delivered to the Administrative
Agent (provided that no filing shall be required with respect to intellectual
property if the Administrative Agent determines that such property is not
material to the business of such Subsidiary), and (vii) deliver an opinion of
counsel in form and substance satisfactory to the Administrative Agent with
respect to each such Person and the matters set forth in this clause (k).
(l) Hedging Agreements.
(i) The Borrower shall enter into Hedging Agreements and, as
necessary, novation arrangements on terms and with counterparties
acceptable to the Hedging Banks, with one or more of the Hedging Banks in
accordance with the requirements of Sections 4.1(e) and 4.3(g).
(ii) The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Hedging Agreements except in accordance
with this Section 6.1(l).
54
(m) Preservation of Security Interests. The Borrower shall preserve
and undertake all actions necessary to maintain the security interests granted
under the Security Documents in full force and effect (including the priority
thereof).
(n) Event of Loss.
(i) The Borrower shall promptly notify the Administrative
Agent upon the Borrower having Actual Knowledge of any Event of Loss that
the Borrower believes will be a Material Loss. The Administrative Agent
shall be entitled at its option to consult in any compromise, adjustment
or settlement in connection with any Event of Loss under any policy or
policies of insurance or any proceeding with respect to any condemnation
or other taking of property of the Borrower or otherwise involving a
Material Loss, and, with respect to any Material Loss, the Borrower shall
within five (5) Business Days after the Administrative Agent's request
reimburse the Administrative Agent for all out-of-pocket expenses
(including reasonable attorneys' and experts' fees) incurred by the
Administrative Agent in connection with such participation.
(ii) If a Material Loss occurs, unless the appropriate Loan
Party elects not to restore such Property and such restoration, repair,
replacement or rebuilding is not required under Prudent Industry Practice
to operate and maintain such Loan Party's business operations at the
applicable airport (in which event the Net Insurance Proceeds or Net
Condemnation Proceeds, as the case may be, shall be applied to a mandatory
prepayment of the Loans in accordance with Section 2.8(c)(iv)), the
Borrower shall promptly (and in any event within 30 days after the
occurrence of the Event of Loss) deliver to the Administrative Agent a
Restoration Plan and, upon approval thereof by the Administrative Agent,
commence and diligently pursue the Restoration. If the plan of restoration
as submitted by the Borrower does not qualify as a Restoration Plan or is
not approved by the Administrative Agent in accordance with this clause,
the Borrower and the Administrative Agent shall enter into negotiations in
good faith with a view to agreeing on mutually acceptable terms of the
Restoration Plan.
(iii) Funds on deposit in the Loss Proceeds Account that are
to be made available for restoration work pursuant to a Restoration Plan
as set forth in clause (ii) above will be disbursed to pay the cost of the
Restoration upon receipt by the Administrative Agent of a certificate of
the Borrower certifying that: (A) all of the restoration work already
completed was done substantially in compliance with the approved
Restoration Plan, (B) the sum requested is required to pay for costs
incurred in connection with such restoration work (giving a description of
the services and materials provided in connection with such restoration
work), (C) the sum requested, when added to all amounts with respect to
the relevant casualty event previously paid out of the Concentration
Account or by the applicable Loan Party out of its Operating Accounts,
does not exceed the aggregate amount then due and payable with respect to
the restoration work done as of the date of such certificate, (D) the
amount of net proceeds with respect to the Event of Loss remaining in the
Concentration Account or the applicable Loan Party's Operating Accounts,
together with any other amounts deposited in such accounts by the Borrower
or any other Person or otherwise irrevocably committed to be made
available to the Borrower as equity funds or Permitted
55
Subordinated Debt (in each case, by the Investor or an Affiliate thereof
or a Person that has at least an investment grade long-term unsecured (and
not credit enhanced) debt rating or other credit status satisfactory to
the Required Lenders) for the purpose of such restoration are anticipated
to be sufficient to complete the restoration work in accordance with the
Restoration Plan, (v) there exists no mechanic's, materialmen's or other
Liens on the affected Property arising out of the Restoration (except
which are not yet due, adequately bonded, Permitted Liens or as are being
contested pursuant to Permitted Contest Provisions), or if the same do
exist, they will be discharged with the funds received from the requested
payment, and (vi) no Default or Event of Default has occurred and is
continuing.
(o) Environmental Management System. The Borrower shall cause all of
its Subsidiaries to conduct their respective business operations in compliance
with the environmental management system presently in place for the Borrower's
businesses, which environmental management system shall at all times incorporate
at least the following elements: a board-approved environmental policy;
designated personnel assigned to assess, achieve and maintain material
compliance with Environmental Laws; a reporting system to ensure monitoring and
oversight by management; systematic record keeping and management review of
budgets and expenses relating to cleanup and compliance with Environmental Laws;
plans, policies and procedures for complying with customary management practices
for maintenance, inspection and management of hazardous materials in the
workplace, including as applicable asbestos-containing materials, lead-based
paint, lead in drinking water and radon. The Borrower shall certify the
completeness and implementation of such a program on or before one hundred
eighty (180) days after the Closing Date. Upon the Administrative Agent's
reasonable request, and at the Borrower's sole cost and expense, the Borrower
shall obtain and provide to the Administrative Agent a written evaluation of an
environmental consulting firm reasonably acceptable to the Administrative Agent,
confirming that the environmental management system is reasonable and customary,
and could reasonably be expected to identify, remedy and manage material
environmental liabilities and/or cleanup obligations.
(p) Further Assurances. The Borrower, at its own cost, expense and
liability, will cause to be promptly and duly taken, executed, acknowledged and
delivered all such further acts, documents and assurances as may be reasonably
necessary in order to carry out the intent and purposes of this Agreement and
the other Loan Documents, and the transactions contemplated hereby and thereby.
(q) Cash Management Procedures; Payments to Reserve Accounts.
(i) The Borrower hereby confirms that its Subsidiaries have
previously established in the respective names of such Subsidiaries the
bank accounts listed as "OPERATING ACCOUNTS" specified on Schedule 5.26
(each such account, an "OPERATING ACCOUNT"). The Borrower and its
Subsidiaries shall maintain or cause to be maintained the Operating
Accounts, and shall deposit or cause to be deposited into the Operating
Accounts all Operating Revenues and all other amounts received by the Loan
Parties from any source whatsoever, in each case, promptly upon receipt
thereof. Each Operating Account shall be linked to the Concentration
Account and cash from each Operating Account shall be transferred into the
Concentration Account on a daily (or, as
56
agreed to with the Administrative Agent, weekly) basis. None of the
Operating Accounts may be closed unless the funds then on deposit in such
Account are transferred to another Operating Account or to a new Operating
Account established and maintained in accordance with clause (ii) below.
(ii) Any Subsidiary of the Borrower may establish additional
Operating Accounts as necessary or desirable for its business; provided
that if an Operating Account is established with a bank with which such
Subsidiary does not maintain an Operating Account as of the Closing Date,
such bank shall be organized under the laws of the United States of
America or any state thereof having a combined capital and surplus of not
less than $500,000,000, unless the Administrative Agent consents to such
bank. Any new bank with which an Operating Account shall be established
shall be required, upon the opening of such Operating Account, to (i)
enter into a Control Agreement, substantially in the form of Exhibit F
hereto with such changes thereto as may be requested or approved by the
Administrative Agent and the Borrower (or such other form as is reasonably
acceptable to the Administrative Agent, such bank and the Borrower), with
the Borrower and the Collateral Agent and carry out such further acts as
the Administrative Agent may reasonably request in order to perfect the
security interest of the Collateral Agent in the relevant accounts and
(ii) agrees to provide monthly and annual statements as to such Operating
Account to the Administrative Agent concurrently with the delivery thereof
to the applicable Subsidiary. If an Operating Account is established with
a bank with which a Subsidiary of the Borrower already maintains an
Operating Account, such bank shall be required, upon the opening of such
Operating Account, to enter into an amendment to the existing Control
Agreement to which it is a party with such changes thereto as are required
or may be requested by the Administrative Agent in order to perfect the
security interest of the Collateral Agent in such Operating Account.
(iii) The Borrower shall cause amounts held in the
Concentration Account to be withdrawn and transferred at the following
times and for the following purposes:
(A) On each Quarterly Funds Transfer Date, the Borrower shall
cause to be transferred to the Debt Service Reserve Account from
available Excess Cash Flow an amount equal to, if a positive number,
(A) the then current Debt Service Reserve Required Balance, minus
(B) the funds then on deposit in the Debt Service Reserve Account.
(B) The Borrower shall cause to be transferred to the Special
Reserve Account such amounts of Excess Cash Flow, after application
of amounts in accordance with the preceding clause (A) and in such
manner as are required pursuant to Sections 6.2(f)(ii) and
6.2(f)(iii).
(C) Subject to Sections 2.8(c)(v) and 2.8(c)(vi), promptly
(and in any event within five (5) Business Days) after the Debt
Service Coverage Ratio has been calculated for each fiscal quarter
of the Borrower, the Borrower shall cause to be transferred to the
Distribution Account all Cash Available for Distribution;
57
provided that if the Borrower is permitted to make a Distribution of
such amounts to the Investor in accordance with Section 6.2(f)(i),
such amounts may be paid by the Borrower directly to the Investor.
(iv) The Borrower and the other Loan Parties hereby agree that
the Administrative Agent is authorized to withdraw and transfer funds from
the Concentration Account to effect the payments described in paragraphs
(A), (B) and (C) above in the event the Borrower does not cause such funds
to be transferred in a timely or otherwise appropriate manner; provided
that the Borrower shall under no circumstances be relieved from its
obligations under Section 6.1(q)(iii).
(r) Assignment of Material Contracts. As promptly as possible after
the Closing Date, the Borrower shall request, or shall cause each relevant
Subsidiary to request, in writing, and the Borrower shall use, or shall cause
each relevant Subsidiary to use, all commercially reasonable efforts to obtain
from each Airport Authority, a written consent with respect to the collateral
assignment of the relevant Subsidiary's interest in each FBO Lease, to the
extent required under the terms of such FBO Lease. The Borrower hereby agrees
that to the extent any such consent is obtained, it shall promptly following
receipt thereof (and in any event, no later than ten (10) Business Days
thereafter) and at its own cost and expense, cause the execution and recording
of a leasehold deed of trust or mortgage relating to such FBO Lease, and deliver
to the Collateral Agent any and all agreements, documents, instruments, filings
and writings deemed necessary by the Collateral Agent, or as the Collateral
Agent may reasonably request from time to time in its sole discretion, to
evidence, perfect or protect the Secured Parties' rights and security interests
in and to the FBO Leases. The Borrower hereby authorizes the Collateral Agent to
execute, deliver and file any such agreement, document, instrument, filing or
writing.
(s) Debt Service Reserve Required Balance.
(i) Subject to clause (ii) below, the Borrower shall deposit
to the Debt Service Reserve Account funds equal to an amount which results
in such account being funded with the Debt Service Reserve Required
Balance as required hereunder and shall thereafter transfer funds to the
Debt Service Reserve Account in accordance with Section 6.1(q)(iii)(A).
(ii) The Borrower shall be permitted to maintain the Debt
Service Reserve Required Balance by any combination (except as otherwise
provided in clause (iii) below) of available cash on deposit in the Debt
Service Reserve Account and a Debt Service Reserve Letter of Credit
maintained in effect by the Borrower; provided that the Debt Service
Reserve Letter of Credit shall not be a Letter of Credit issued under the
Letter of Credit Facility. The Borrower shall notify the Administrative
Agent at least forty-five (45) days prior to the expiration of the Debt
Service Reserve Letter of Credit provided pursuant to this Section 6.2(s).
Any Debt Service Reserve Letter of Credit shall be unconditionally
drawable by the Administrative Agent if any of the following occurs: (A)
in the event, and to the extent, of any shortfall in the payment of
Mandatory Debt Service when due; (B) in the event the entity that has
issued the Debt Service Reserve Letter of Credit suffers an L/C Issuer
Event, thirty (30) days after the occurrence of such
58
L/C Issuer Event, and (C) the occurrence of any Event of Default and
acceleration of the Loans and/or exercise of remedies under the Security
Documents.
(iii) Upon the occurrence of an L/C Issuer Event (and provided
that the Administrative Agent shall not have drawn the full amounts
available thereunder), the Borrower shall replace any letter of credit
affected thereby by depositing cash to the Debt Service Reserve Account or
providing a letter of credit issued by an Acceptable Issuer not later than
three (3) Business Days after the earlier of (A) the Collateral Agent
giving the Borrower written notice thereof and (B) the Borrower having
Actual Knowledge thereof.
(iv) Upon the satisfaction in full of the Obligations, the
Debt Service Reserve Letter of Credit will be forthwith returned to the
Borrower for cancellation and termination thereof.
(t) Operating Accounts.
(i) Subject to the following sentence, the Borrower shall at
all times, at its sole cost and expense, cause its Subsidiaries holding
the following bank accounts to (x) in the case of the account described in
clause (A) below, cause all cash in such account (except for an amount to
be agreed upon with the Administrative Agent to be reserved for working
capital purposes) to be transferred into the Concentration Account no less
frequently than on a daily basis, and (y) in the case of the accounts
described in clauses (B), (C), (D), (E), (F), (G), (H) and (I) below,
cause all cash in such account (except for an amount to be agreed upon
with the Administrative Agent to be reserved for working capital purposes)
to be transferred into the Concentration Account no less frequently than
on a weekly basis: (A) the deposit account (no. 015-00042903) held by
Atlantic Aviation Corporation at JPMorgan Chase Bank, (B) the deposit
account (no. 0517005305) held by Flightways of Long Island, Inc. at State
Bank of Long Island, (C) the accounts (nos. 4000063107 and 4945014702)
held by Palm Springs FBO Two LLC at Wells Fargo Bank, (D) the account (no.
4945037083) held by Newport FBO Two LLC at Wells Fargo Bank, (E) the
accounts and associated lockboxes (nos. 56-0349-5287, 56-0081-4457 and
56-0081-6524) held by Atlantic Aviation Corporation at PNC Bank, (F) the
deposit account (no. 540740134) held by Trajen Flight Support, L.P. at
Bank of America, (G) the deposit account (no. 400139-672-5) held by Trajen
Flight Support, L.P. at Citizens Bank, (H) the deposit account (no.
4121110092) held by Trajen Flight Support, L.P. at Wells Fargo Bank, and
(I) the checking account (no. 1850501610) held by Trajen Flight Support,
L.P. at County Bank of Stockton; provided that with respect to the
accounts at PNC Bank described in clause (E), if at any time the balance
in any such account exceeds $25,000, the Borrower shall cause the transfer
of cash from such account to the Concentration Account to occur on a daily
basis. The Borrower, at its sole cost and expense, shall cause its
Subsidiaries to close each of the accounts described in clauses (A)
through (I) above and transfer the full balance in each such account to an
Operating Account that is subject to a Control Agreement or to a new
Operating Account established and maintained in accordance with Section
6.1(q)(ii) by no later than June 30, 2006. The Borrower shall have
delivered to the Administrative Agent such
59
documentation in form and substance reasonably satisfactory to the
Administrative Agent evidencing the completion of the actions required
pursuant to this clause (i).
(ii) As soon as practicable after the Closing Date, the
Borrower shall, at its sole cost and expense, cause each deposit account
held by MANA or any of its Subsidiaries at Bank of America, N.A. to be
closed, and the balance of funds in such accounts to be withdrawn and
deposited in a new collections account established with Wachovia Bank,
N.A. (the "MANA Collections Account") which shall be opened in accordance
with Section 6.1(q)(ii). The Borrower shall cause MANA and its
Subsidiaries to deposit or cause to be deposited into the MANA Collections
Account all Operating Revenues and all other amounts received by MANA and
its Subsidiaries from any source whatsoever, in each case, promptly upon
receipt thereof. The MANA Collections Account shall be linked to the
Concentration Account and cash in the MANA Collections Account shall be
transferred into the Concentration Account no less frequently than on a
daily basis. The MANA Collections Account shall not be closed without the
prior written consent of the Administrative Agent.
(iii) Subject to the following sentence, the Borrower shall at
all times, at its sole cost and expense, cause Trajen and each Subsidiary
of Trajen holding the bank accounts at Wells Fargo Bank, N.A., Bank of
America, N.A., Citizens Bank, Fidelity Bank, and Waukesha State Bank
specified on Schedule 5.26, to cause all cash in each such account
(except, with respect to any such account, for an amount to be agreed upon
with the Administrative Agent to be reserved for working capital purposes,
if necessary) to be transferred into the Concentration Account no less
frequently than on a daily basis. The Borrower, at its sole cost and
expense, shall cause each applicable Subsidiary to close each of such
accounts and transfer the full balance in each such account to the
Concentration Account or to an existing Operating Account that is subject
to a Control Agreement or to a new Operating Account established and
maintained in accordance with Section 6.1(q)(ii) by no later than December
31, 2006. The Borrower shall have delivered to the Administrative Agent
such documentation in form and substance reasonably satisfactory to the
Administrative Agent evidencing the completion of the actions required
pursuant to this clause (iii).
(iv) The Borrower (or applicable Subsidiary of the Borrower)
shall notify the Administrative Agent and the Collateral Agent in writing
promptly upon receipt of notice that a Control Agreement with respect to
any Operating Account will be terminated or otherwise will no longer be in
full force and effect. In such event, the Borrower shall promptly, and in
any event prior to the effective date of such termination, cause the
withdrawal and transfer of any balance in the affected Operating Account
to an existing Operating Account that is subject to a Control Agreement or
a new Operating Account established and maintained in accordance with
Section 6.1(q)(ii).
(u) Extension of Material Contracts. The Borrower shall cause each
of its Subsidiaries operating an FBO Lease, Management Contract or the Heliport
Contract to exercise all available extension and renewal rights under each such
contract except with the prior written consent of the Required Lenders.
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(v) Pledge of Equity Interests in Subsidiaries. The Borrower shall
use all commercially reasonable efforts to obtain the consent of an Airport
Authority for the pledge of the Equity Securities of any of Trajen's
Subsidiaries that is a party to a Trajen FBO Lease to the extent such consent is
required thereunder. If the Borrower is unable to obtain such consent within 30
days after the Trajen Acquisition Term Loan Disbursement Date, the Borrower
shall, at its sole cost, promptly cause such Subsidiary to be directly and
wholly-owned by a single-purpose entity owning only the stock of such Subsidiary
(which entity shall also be a Subsidiary of the Borrower). The Equity Securities
of each such immediate parent entity shall be pledged in favor of the Collateral
Agent to secure the Obligations.
(w) Disposal of Aviation Maintenance Services Business. The Borrower
shall use commercially reasonable efforts to sell, assign, convey and transfer,
prior to December 31, 2006, all of its rights and obligations to the businesses
and assets relating to the aviation maintenance services currently provided at
the FBO facilities operated by certain of Trajen's Subsidiaries (the
"MAINTENANCE SERVICES BUSINESSES"), in accordance with the terms of the relevant
FBO Leases and the terms of all applicable law and Governmental Authorizations,
to a reputable entity or entities possessing reasonably sufficient experience
operating similar services in accordance with prudent industry standards for
work of similar scope and scale, and under arrangements whereby the Borrower and
its Subsidiaries are not responsible or liable for such services following such
sale. Without limiting the foregoing, if such sale is not consummated within
ninety (90) days following the Closing Date, the Borrower shall arrange for the
transfer of the Maintenance Services Businesses and related assets, together
with capitalization sufficient for the operations and conduct of such
businesses, including the carrying and maintenance of insurance of the types, in
the amounts and subject to such deductibles and other terms customarily carried
from time to time by others engaged in substantially the same business as the
Maintenance Services Business and in accordance with prevailing prudent industry
standards, so as to cause such services to be held and provided by a new
Subsidiary or group of Subsidiaries in a manner that minimizes the exposure of
the Borrower or any of its other Subsidiaries to liability resulting from the
conduct of such businesses.
Section 6.2. Negative Covenants.
Until the termination of the Commitments and the satisfaction in full by
the Borrower of all Obligations, the Borrower will not, and will not permit any
of its Subsidiaries to do, any of the following, unless the Required Lenders
shall have otherwise consented in writing:
(a) Indebtedness and Guarantee Obligations. None of the Borrower or
its Subsidiaries shall create, incur, assume or permit to exist any Indebtedness
or Guarantee Obligations except for the following ("PERMITTED INDEBTEDNESS"):
(i) Indebtedness or Guarantee Obligations of the Borrower or
its Subsidiaries under the Loan Documents;
(ii) Indebtedness of the Borrower or its Subsidiaries listed
in Schedule 6.2(a) and existing on the date of this Agreement, with all
such Indebtedness identified in Schedule 6.2(a) as being repaid in
connection with the Borrowing of Term Loans having been repaid
concurrently with such Borrowing;
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(iii) Guarantee obligations of the Borrower or any of its
Subsidiaries in respect of Permitted Indebtedness of any of the Borrower
or its Subsidiaries;
(iv) Permitted Subordinated Debt of the Borrower;
(v) Indebtedness of the Borrower under Hedging Agreements
entered into with respect to the Loans in accordance with Section 4.1(e);
and
(vi) Indebtedness incurred to finance the purchase,
construction or improvement of fixed or capital assets, including
obligations under Capital Leases (which shall be deemed to exist if the
Indebtedness is incurred at or within 90 days before or after the purchase
or construction of the capital asset); provided that the aggregate
principal amount of such Indebtedness, for the Borrower and its
Subsidiaries taken as a whole shall not exceed $3,000,000 outstanding at
any time.
and extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof.
(b) Liens, Negative Pledges. None of the Borrower or its
Subsidiaries shall create, incur, assume or permit to exist any Lien on or with
respect to any Property of the Borrower or its Subsidiaries, in either case
whether now owned or hereafter acquired, except for the following ("PERMITTED
LIENS"):
(i) Liens in favor of the Collateral Agent for the benefit of
the Secured Parties under the Loan Documents;
(ii) Liens listed in Schedule 6.2(b) and existing on the date
hereof, all of which Liens that secure Indebtedness that is identified in
Schedule 6.2(a) as being repaid in connection with the Borrowing of Term
Loans shall be terminated concurrently with such Borrowing;
(iii) Liens for taxes or other Governmental Charges not at the
time delinquent or thereafter payable without penalty or being contested
in good faith, provided that adequate reserves for the payment thereof
have been established in accordance with GAAP and no Property of the
Borrower or its Subsidiaries is subject to impending risk of loss or
forfeiture by reason of nonpayment of the obligations secured by such
Liens;
(iv) Liens of carriers, warehousemen, mechanics, materialmen,
vendors, and landlords and other similar Liens imposed by law and incurred
in the ordinary course of business consistent with past practice for sums
which are not overdue more than 45 days or are being contested in good
faith, provided that adequate reserves for the payment thereof have been
established in accordance with GAAP;
(v) deposits under workers' compensation, unemployment
insurance and social security laws or to secure the performance of bids,
tenders, contracts (other than for the repayment of borrowed money) or
leases, or to secure statutory obligations of
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surety or appeal bonds or to secure indemnity, performance or other
similar bonds in the ordinary course of business consistent with past
practice;
(vi) zoning restrictions, easements, rights-of-way, title
irregularities and other similar encumbrances, which alone or in the
aggregate are not substantial in amount and do not materially detract from
the value of the Property subject thereto or interfere with the ordinary
conduct of the business of the Borrower or its Subsidiaries;
(vii) any purchase-money Lien granted to a Person financing
the purchase of goods or equipment if such Lien encumbers only the
specific goods or equipment purchased and the Indebtedness secured by such
Lien does not exceed the purchase price paid for such goods or equipment;
(viii) Liens incurred in connection with the extension,
renewal or refinancing of the Indebtedness secured by the Liens described
in clauses (ii) and (vii) above, provided that any extension, renewal or
replacement Lien (A) is limited to the Property covered by the existing
Lien and (B) secures Indebtedness which is no greater in amount, has a
maturity date not later than the Indebtedness refinanced and has material
terms no less favorable to the Lenders than the Indebtedness secured by
the existing Lien; and
(ix) Liens arising in connection with any letters of credit
issued with respect to any Material Contracts and/or insurance policies
that are required to be maintained by the Borrower or its Subsidiaries
pursuant to the terms thereof, and Liens of the Airport Authorities as
provided in the Material Contracts or under applicable law.
(c) Asset Dispositions. None of the Borrower or its Subsidiaries
shall directly or indirectly sell, lease, convey, transfer or otherwise dispose
of (whether in one transaction or in a series of transactions) any Property,
whether now owned or hereafter acquired, or enter into any agreement to do any
of the foregoing, except for the following:
(i) sales by the Borrower or any of its Subsidiaries of
inventory to Persons in the ordinary course of their businesses,
including, intercompany sales of inventory by one such Loan Party to
another such Loan Party;
(ii) sales or other dispositions by the Borrower or any of its
Subsidiaries of surplus, damaged, worn or obsolete property and equipment
in the ordinary course of their businesses for not less than fair market
value (except as approved by the Board of Directors of the Borrower in the
case of any sale of disposition to a Person that is not an Affiliate);
provided that no Event of Default shall have occurred and be continuing;
(iii) sales or other dispositions by the Borrower or any of
its Subsidiaries of Investments permitted by Section 6.2(e)(ii) for not
less than fair market value;
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(iv) sales or other dispositions of Property with a fair
market value not exceeding $250,000 in any fiscal year, the proceeds of
which are applied to the prepayment of the Loans to the extent required in
Section 2.8(c);
(v) the termination of any of the following FBOs: (i) the FBO
currently operated by General Aviation of New Orleans L.L.C. at New
Orleans Lakefront Airport, New Orleans, Louisiana; (ii) the FBO currently
operated by Trajen Flight Support, L.P. at Gustavus Airport, Juneau,
Alaska; and (iii) the FBO currently operated by Trajen Flight Support,
L.P. at Lake Tahoe Airport, South Lake Tahoe, California, and in each
case, the sale or other disposition by such Subsidiary of property and
equipment used in the business of such FBO for not less than fair market
value; provided that if terminating such FBO shall require the operator or
lessee of such FBO to make a termination or similar payment to the
relevant Airport Authority, such termination shall require the prior
written consent of the Required Lenders; and
(vi) sales of the business and assets relating to the aviation
maintenance services currently provided at the FBO facilities operated by
certain of Trajen's Subsidiaries, to the extent permitted by the terms of
the relevant FBO Leases and in accordance with all applicable law and
Governmental Authorizations, in favor of a reputable entity or entities
possessing reasonably sufficient experience in operating similar services
in accordance with prudent industry standards for work of similar scope
and scale, and under arrangements whereby the Borrower and its
Subsidiaries are not responsible or liable for such services following
such sale.
(d) Mergers, Acquisitions, Etc. None of the Borrower or its
Subsidiaries shall consolidate with or merge into any other Person or permit any
other Person to merge into it, acquire any Person as a new Subsidiary or acquire
all or substantially all of the assets of any other Person or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets, whether now owned or
hereafter acquired, to any Person; provided that the Borrower and its
Subsidiaries may merge with each other (and with other Subsidiaries of the
Borrower which become Loan Parties), and provided, further that (i) no Default
or Event of Default will result after giving effect to any such merger and (ii)
in any such merger involving the Borrower, the Borrower is the surviving Person.
(e) Investments. None of the Borrower or its Subsidiaries shall make
any Investment except for Investments in the following:
(i) Investments by the Borrower or any of its Subsidiaries in
cash and Cash Equivalents;
(ii) Investments listed in Schedule 6.2(e) existing on the
date hereof;
(iii) Investments by the Borrower and any of its Subsidiaries
in each other;
(iv) deposit accounts established and maintained in accordance
with Section 6.2(k) which are subject to control agreements, upon terms
and provisions satisfactory to the Administrative Agent, which have been
executed by the applicable
64
Loan Party, the Collateral Agent and the depositary bank at which such
account is maintained; and
(v) securities accounts established and maintained in
accordance with Section 6.2(k) which are subject to control agreements,
upon terms and provisions satisfactory to the Administrative Agent, which
have been executed by the applicable Loan Party, the Collateral Agent and
the securities intermediary at which such account is maintained.
(f) Distributions.
(i) None of the Borrower or its Subsidiaries shall make any
Distributions or set apart any sum for any such purpose, except:
(A) a Subsidiary of the Borrower may make Distributions to
another Subsidiary of the Borrower or to the Borrower,
(B) the Borrower may make cash Distributions to the Investor
in an amount equal to Cash Available for Distribution as of any
Calculation Date within thirty-five (35) days following such
Calculation Date if each of the following conditions has been met:
(I) the Backward Debt Service Coverage Ratio as of such
Calculation Date, modified to exclude from the calculation of
Net Cash Flow any equity contributions referred to in clause
(b) of the definition of "Net Cash Flow", is equal to or
greater than 1.50 to 1.00, and the Forward Debt Service
Coverage Ratio as of such Calculation Date, modified to
exclude from the calculation of Net Cash Flow any equity
contributions referred to in clause (b) of the definition of
"Net Cash Flow", is equal to or greater than 1.50 to 1.00,
each as evidenced by a certificate delivered by the Borrower
to the Administrative Agent no later than five (5) Business
Days prior to the proposed date of Distribution;
(II) with respect to any Calculation Date occurring
during the EBITDA Test Period, no Lock-up Event has occurred
and is continuing as of such Calculation Date;
(III) no Lock-up Period is outstanding as of such
Calculation Date;
(IV) no Default or Event of Default shall have occurred
and be continuing as of the date of such Distribution or shall
result from the making of the proposed Distribution;
(V) all mandatory prepayments of the Loans, if any, for
such fiscal quarter shall have been paid to the Administrative
Agent;
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(VI) the Debt Service Reserve Required Balance is fully
reserved with either a cash deposit to the Debt Service
Reserve Account or a Debt Service Reserve Letter of Credit
issued in accordance with Section 6.1(s) or any combination
thereof); and
(VII) the Administrative Agent has received notice from
the Borrower of such Distribution in writing certifying that
the foregoing conditions (I) through (VI) have been met; and
(C) the Borrower may make a Distribution to the Investor with
proceeds of the Borrowing of Term Loans on the Refinancing Term Loan
Disbursement Date.
(ii) If, as of any Calculation Date, any one or more of the
conditions to Distribution set forth in Section 6.2(f)(i)(B) shall not be
satisfied, the Borrower shall promptly (and in any event not later than
two (2) Business Days after the Borrower has delivered a certified
calculation of the Debt Service Coverage Ratios for such Calculation Date
pursuant to Section 6.1(a)(v)) transfer to the Collateral Agent for
deposit in the Special Reserve Account cash in an amount equal to the
Excess Cash Flow as of such Calculation Date, for application to the
mandatory prepayment of Loans in accordance with Section 2.8(c)(v).
(iii) If a Lock-up Event occurs in respect of any Calculation
Date during the EBITDA Test Period, the Borrower shall promptly (and in
any event not later than two (2) Business Days after the Borrower has
delivered a certified calculation of the EBITDA as of such Calculation
Date pursuant to Section 6.1(a)(vi)), transfer to the Collateral Agent for
deposit in the Special Reserve Account cash in an amount equal to the
Excess Cash Flow as of such Calculation Date and, on each succeeding
Calculation Date occurring during the Lock-up Period, cash in an amount
equal to the Excess Cash Flow as of such Calculation Date, for application
to the mandatory prepayment of Loans in accordance with Section 2.8(c)(v).
(g) Change in Business. None of the Borrower or its Subsidiaries
shall engage, either directly or indirectly, in any business other than the
businesses conducted by the Borrower and its Subsidiaries as of the Closing
Date, and any business substantially related or incidental thereto, or enter
into any new FBO Leases or Management Contracts other than with respect to
operations located on municipal airports within the United States and Canada.
The Borrower and its Subsidiaries shall not change their respective payment
arrangements with fuel suppliers, as such arrangements are in effect as of the
Closing Date, such that the purchase price for fuel is a price other than on the
basis of the prevailing market price at the time of delivery or payment for fuel
is made on a deferred basis, without the prior written consent of the Required
Lenders.
(h) Payments of Indebtedness. None of the Borrower or its
Subsidiaries shall (i) prepay, redeem, purchase, defease or otherwise acquire or
satisfy in any manner prior to the scheduled due date thereof any Indebtedness
(other than Permitted Indebtedness so long as no Default or Event of Default is
then existing or would result from such prepayment, and the
66
Obligations); (ii) amend, modify or otherwise change the terms of any document,
instrument or agreement evidencing Indebtedness (other than Permitted
Indebtedness so long as no Default or Event of Default is then existing or would
result from such prepayment, and the Obligations) so as to accelerate any
scheduled payment thereof or (iii) without limiting the generality of the
provisions of Section 6.2(m), amend, modify or otherwise change the payment
terms of the Acquisition Agreements in a manner materially adverse to the
Borrower without the prior consent of the Administrative Agent acting at the
direction of the Required Lenders.
(i) ERISA. None of the Borrower or its Subsidiaries shall:
(i) take any action which will result in the partial or
complete withdrawal, within the meanings of sections 4203 and 4205 of
ERISA, from a Multiemployer Plan;
(ii) engage or permit any Person to engage in any transaction
prohibited by section 406 of ERISA or section 4975 of the IRC involving
any Employee Benefit Plan or Multiemployer Plan which would subject the
Borrower or any ERISA Affiliate to any tax, penalty or other liability
including a liability to indemnify;
(iii) incur or allow to exist any accumulated funding
deficiency (within the meaning of section 412 of the IRC or section 302 of
ERISA with respect to any Employee Benefit Plan);
(iv) fail to make full payment when due of all amounts due as
contributions to any Employee Benefit Plan or Multiemployer Plan;
(v) fail to comply with the requirements of section 4980B of
the IRC or Part 6 of Title I(B) of ERISA; or
(vi) adopt any amendment to any Employee Benefit Plan which
would require the posting of security pursuant to section 401(a)(29) of
the IRC,
where singly or cumulatively, the above event or events would be reasonably
likely to have a Material Adverse Effect.
(j) Transactions With Affiliates. Except as otherwise permitted by
the Loan Documents, none of the Borrower or its Subsidiaries shall enter into
any Contractual Obligation with any Affiliate (other than the Borrower or a
Subsidiary of the Borrower) or engage in any other transaction with any
Affiliate except upon terms at least as favorable to such Loan Party as an
arms-length transaction with unaffiliated Persons; provided that the foregoing
shall not preclude reasonable non-cash allocation of costs to the Borrower by
MIC.
(k) Accounts. None of the Borrower or its Subsidiaries shall
maintain banking accounts or securities accounts other than (i) the Accounts,
(ii) the bank accounts and securities accounts listed in Schedule 5.26, and
(iii) additional bank accounts and securities accounts established after the
Closing Date for the working capital needs of the Borrower or any of its
Subsidiaries which are subject to control agreements, upon terms and provisions
satisfactory to the Administrative Agent, which have been executed by the
applicable Loan
67
Party, the Collateral Agent and the depositary bank or securities intermediary
at which such account is maintained.
(l) Accounting Changes. None of the Borrower or its Subsidiaries
shall change (i) its fiscal year (currently January 1 through December 31) or
(ii) its accounting practices except as required by GAAP.
(m) Amendments of Material Documents. Without the prior written
consent of the Administrative Agent, none of the Borrower or its Subsidiaries
shall (i) cancel or terminate or replace any Material Contract, Organizational
Document or Acquisition Agreement (collectively, the "MATERIAL DOCUMENTS"), (ii)
consent to or accept any cancellation or termination of any Material Document
(other than as permitted without the consent of the relevant Loan Party and
without a default in accordance with the terms of such Material Document), (iii)
amend, modify or supplement in any material respect any Material Document or any
document executed and delivered in connection therewith, in any respect that
could reasonably be expected to adversely affect any material right or interest
of the Lenders or any Loan Party's ability to pay and perform the Obligations;
(iv) waive any material default under, or material breach of, any Material
Document or waive, fail to enforce, forgive, compromise, settle, adjust or
release any material right, interest or entitlement, howsoever arising, under,
or in respect of any Material Document or in any way vary, or agrees to the
variation of, any material provision of such Material Document or of the
performance of any material covenant or obligation by any other Person under any
Material Document that could reasonably be expected adversely affect any
material any right or interest of the Lenders or any Loan Party's ability to pay
and perform the Obligations, or (v) assign (other than pursuant to the Security
Documents) or otherwise dispose of (by operation of law or otherwise) any part
of its interest in any Material Document other than to another Loan Party.
(n) Joint Ventures. None of the Borrower or its Subsidiaries shall
enter into any Joint Venture.
(o) Management Fees; Non-Cash Allocations. None of the Borrower or
its Subsidiaries shall pay any management fees other than (i) management fees
paid by a Loan Party to another Loan Party or Loan Parties and (ii) third-party
facility management fees approved by the Board of Directors of the Borrower and
the Administrative Agent (such approval by the Administrative Agent not to be
unreasonably withheld); provided that the foregoing shall not preclude
reasonable non-cash allocation of costs to the Borrower by MIC.
(p) Jurisdiction of Formation. None of the Borrower or its
Subsidiaries shall change its respective jurisdiction of formation except upon
not less than thirty (30) days prior written notice to the Administrative Agent.
(q) Sales and Leaseback; off-Balance Sheet Financing. None of the
Borrower or its Subsidiaries shall engage in (i) any sale and leaseback
transaction with respect to any of its Property of any character, whether now
owned or hereafter acquired or (ii) any off-balance sheet transaction or other
similar transaction.
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(r) Expansion Capital Expenditures. None of the Borrower or its
Subsidiaries shall incur or pay for any Expansion Capital Expenditures unless
such expenditures are paid with funds transferred from the Distribution Account,
financed by Indebtedness permitted in accordance with Section 6.2(a)(iv) or
funded by equity contributions made by the Investor.
ARTICLE VII
EVENTS OF DEFAULT; REMEDIES
Section 7.1. Events of Default.
Any one or more of the following events shall constitute an Event of
Default:
(a) (i) the Borrower shall fail to pay any principal of any Loan or
any Reimbursement Obligation or any Hedging Termination Obligation when and as
the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise, or (ii) the Borrower shall fail
to pay any interest on any Loan or any Hedging Obligation, when and as the same
shall become due and payable, or shall fail to transfer any amounts to the
Collateral Agent when and as required in accordance with Section 6.1(q) and such
failure shall continue unremedied for a period of three (3) Business Days, or
(iii) the Borrower shall fail to pay any fee or any other amount (other than the
amounts referred to in clause (i) or (ii) above), and such failure shall
continue unremedied for a period of three (3) Business Days after notice thereof
from the Administrative Agent to the Borrower (which notice will be given at the
request of the Required Lenders); provided that no Event of Default shall occur
pursuant to this Section 7.1(a)(i) with respect to any failure to prepay Loans
pursuant to Section 2.8(c)(vi) unless such failure shall continue unremedied for
a period of six (6) consecutive months.
(b) the Borrower shall fail to comply with any covenant or agreement
contained in Section 6.1(d), Section 6.1(g), Section 6.1(h)(i), Section 6.1(i),
Section 6.1(j), Section 6.1(k), or Section 6.2; or
(c) at any time, funds on deposit in any Account are used by or on
behalf of the Borrower other than for the purposes expressly specified in this
Agreement or are withdrawn by or at the direction of the Borrower other than as
expressly permitted pursuant to the Collateral Agency Agreement; or
(d) any default shall occur under any Subsidiary Guaranty or other
Security Document and such default shall continue beyond any period of grace
provided with respect thereto; or
(e) any insurance required to be maintained pursuant to Section
6.1(e) of this Agreement is terminated, ceases to be valid and in full force and
effect or is amended or otherwise modified in any manner so as could reasonably
be expected to have a Material Adverse Effect, unless replacement insurance with
coverages and other terms substantially similar to the previous insurance and
meeting the requirements of Section 6.1(e) of this Agreement is procured within
thirty (30) days of such event.
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(f) the Borrower or any other Loan Party shall fail to comply with
any covenant or agreement under this Agreement or under any other Loan Document
(other than those specified in subsections (a), (b), (c), (d) or (e) above), and
such failure is not remedied within 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request
of the Required Lenders) or, if the failure is capable of remedy, such longer
period as may be agreed to between the Administrative Agent in its discretion
and the applicable Loan Party so long as the applicable Loan Party is diligently
pursuing such remedy and such extension of time does not result or could not
reasonably be expected to result in a Material Adverse Effect; or
(g) any representation or warranty made by the Borrower or any other
Loan Party in any Loan Document to which it is a party, or in any certificate or
document delivered to the Administrative Agent or the Collateral Agent by the
Borrower or any other Loan Party pursuant to any Loan Document, shall prove to
have been incorrect when made or deemed made and a Material Adverse Effect would
reasonably be expected to result therefrom; or
(h) any of the Borrower or its Subsidiaries shall (i) fail to make
any payment on account of any Indebtedness of such Person (other than the
Obligations or Permitted Subordinated Indebtedness) when due (whether at
scheduled maturity, by required prepayment, upon acceleration or otherwise) and
such failure shall continue beyond any grace period provided with respect
thereto, if the amount of such Indebtedness exceeds $500,000 or the effect of
such failure is to cause, or permit the holder or holders thereof to cause, such
Indebtedness of the Borrower or any of its Subsidiaries (other than the
Obligations or Permitted Subordinated Indebtedness) in an aggregate amount
exceeding $500,000 to become redeemable, liquidated, due or otherwise payable
(whether at scheduled maturity, by required prepayment, upon acceleration or
otherwise) and/or to be secured by cash collateral or (ii) otherwise fail to
observe or perform any agreement, term or condition contained in any agreement
or instrument relating to any Indebtedness of such Person (other than the
Obligations or Permitted Subordinated Indebtedness), or any other event shall
occur or condition shall exist, if the effect of such failure, event or
condition is to cause, or permit the holder or holders thereof to cause, such
Indebtedness of the Borrower or any of its Subsidiaries (other than the
Obligations or Permitted Subordinated Indebtedness) in an aggregate amount
exceeding $500,000 to become redeemable, liquidated, due or otherwise payable
(whether at scheduled maturity, by required prepayment, upon acceleration or
otherwise) and/or to be secured by cash collateral; or
(i) any of the Borrower or its Subsidiaries shall (i) apply for or
consent to the appointment of a receiver, trustee, liquidator or custodian of
itself or of all or a substantial part of its respective Property, (ii) be
unable, or admit in writing its inability, to pay its debts generally as they
mature, (iii) make a general assignment for the benefit of its or any of its
creditors, (iv) be dissolved or liquidated in full or in part, (v) become
insolvent (as such term may be defined or interpreted under any applicable
statute), or (vi) commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or consent to any such relief or to the appointment of or taking possession of
its Property by any official in an involuntary case or other proceeding
commenced against it; or
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(j) proceedings for the appointment of a receiver, trustee,
liquidator or custodian of any of the Borrower or its Subsidiaries or of all or
a substantial part of the Property thereof, or an involuntary case or other
proceedings seeking liquidation, reorganization or other relief with respect to
any such Loan Party or the debts thereof under any bankruptcy, insolvency or
other similar law now or hereafter in effect shall be commenced and an order for
relief entered or such proceeding shall not be dismissed or discharged within
sixty (60) days of commencement; or
(k) a final judgment that is not covered by available insurance as
acknowledged in writing by the provider of such insurance or as certified to the
Administrative Agent by an independent insurance broker or carrier satisfactory
to the Administrative Agent is entered against any of the Borrower or its
Subsidiaries in excess of $500,000 and such judgment remains unsatisfied without
procurement of a stay of execution for more than 30 days after its entry; or
(l) (i) any Loan Document or any material term thereof shall cease,
for any reason, to be in full force and effect or any Loan Party shall so assert
in writing and any such event continues for ten (10) days after the earlier of
the Administrative Agent giving notice and the Borrower becoming aware of such
event; or (ii) any Security Document shall cease, except in accordance with its
terms, to be effective to grant a valid and first-priority perfected Lien on the
Collateral described therein (other than with respect to Permitted Liens); or
(iii) the Borrower or any of its Subsidiaries shall issue, create or permit to
be outstanding any Equity Securities which shall not be subject to a
first-priority perfected Lien under the Security Documents; or
(m) any Reportable Event which the Administrative Agent reasonably
believes in good faith constitutes grounds for the termination of any Plan by
the PBGC or for the appointment of a trustee by the PBGC to administer any Plan
shall occur and be continuing for a period of thirty (30) days or more after
notice thereof is provided to the Borrower by the Administrative Agent, or a
trustee shall be appointed by the PBGC to administer any Plan; or
(n) a Change of Control shall occur; or
(o) any party to a Material Contract shall fail to perform or
observe in any respect the terms, covenants, obligations or conditions contained
in such Material Contract or shall materially breach or otherwise be in default
under such Material Contract, which failure, breach or default shall have
remained unremedied beyond the applicable grace or cure period, if any, provided
in such Material Contract, and such failure continues for a period of 30 days
after notice from the Administrative Agent or, if the failure is capable of
remedy, such longer period as may be agreed to between the Administrative Agent
in its discretion and the applicable Loan Party so long as the applicable party
is diligently pursuing such remedy and such extension of time does not or could
not reasonably be expected to result in a Material Adverse Effect; provided that
any such event occurring with respect to a party other than a Loan Party shall
be deemed an Event of Default only if such event had or could reasonably be
expected to have a Material Adverse Effect; or
(p) (i) any Material Contract at any time for any reason ceases to
be valid and binding and in full force and effect with respect to any party
thereto, or any such Person shall so
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assert in writing, other than with respect to the scheduled expiration date of
such Material Contract; (ii) any Material Contract is terminated prior to the
scheduled expiration date thereof by or on behalf of any party thereto for any
reason whatsoever without the prior written consent of the Administrative Agent,
or a Loan Party is notified by or on behalf of an Airport Authority of its
intent to terminate any Material Contract, or a Material Contract becomes
capable of being terminated as a result of a breach by any Loan Party; or (iii)
any material provision of any Material Contract shall be declared to be null and
void, and any such event shall continue in effect for ten (10) days; or
(q) any Loan Party shall abandon its business operations at any
airport at which it is entitled to conduct its business under a Material
Contract, which abandonment shall be deemed to have occurred if such Loan Party
shall fail, without reasonable cause, to conduct business operations in the
ordinary course at such airport for a continuous period of more than 30 days; or
(r) any Governmental Authorization necessary (i) for the execution,
delivery and performance by any Loan Party of any of the Loan Documents or
Material Documents to which it is a party, or for the performance by any such
Loan Party of its material rights and obligations thereunder or (ii) for the
ownership, leasing or operation of any material portion of the business of the
Loan Parties (determined on a consolidated basis) as conducted as of the Closing
Date, shall be revoked, terminated, withdrawn, suspended or materially modified,
unless such Governmental Authorization is reinstated within ten (10) days after
the occurrence of such event (or such longer period as is necessary to reinstate
such Governmental Authorization, so long as the applicable Loan Party is
diligently pursuing such reinstatement and such extension of time does not
result or could reasonably be expected to result in a Material Adverse Effect);
or
(s) any substantial portion of the Property of the Borrower or any
of its Subsidiaries (determined on a consolidated basis) is seized, condemned,
nationalized or appropriated without fair value being paid therefor (or made up
through equity contributions) so as to allow replacement of such Property and/or
prepayment of Obligations and to allow the Borrower in the Administrative
Agent's reasonable judgment to continue satisfying its obligations hereunder and
under the other Loan Documents; or
(t) the Backward Debt Service Coverage Ratio shall be less than or
equal to 1.20 to 1.00 as of the end of any fiscal quarter of the Borrower, or
the Leverage Ratio as of any two consecutive Calculation Dates during the
Leverage Ratio Test Period is greater than the Applicable Leverage Ratio for
such period; or
(u) any event or condition involving loss, liability, damage or
financial impact in excess of $10,000,000 suffered or incurred by one or more of
the Borrower or any of its Subsidiaries shall occur or exist, which event or
condition could reasonably be expected to have a Material Adverse Effect.
Any Event of Default referred to in Section 7.1(o), (p) or (q) affecting
one or more FBOs (other than a Non-Eligible FBO) may, at any time prior to
acceleration of the Loans under Section 7.2(a)(ii), be cured by prepayment in
accordance with Section 2.8(b) of a portion of the Term Loans equal to (i) the
Term Loans outstanding as of the date on which such Event of
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Default occurred multiplied by (ii) the Proportional EBITDA Contribution of such
FBO(s), whereupon the Borrower Subsidiary or Borrower Subsidiaries party to the
FBO Leases at the affected FBO locations shall be released from the Loan
Documents; provided that such method of cure may be exercised as to any FBO only
if the Proportional EBITDA Contribution of such FBO, when added to the
Proportional EBITDA Contribution of any other FBO(s) as to which such method of
cure is concurrently exercised, does not exceed the Maximum Release Percentage.
Any such prepayment shall be made solely out of Cash Available for Distribution
as of the end of the most recent fiscal quarter of the Borrower or from new
equity contributions from the Investor to the Borrower, or a combination
thereof. For the avoidance of doubt, the cure right permitted by this paragraph
shall not be available with respect to the Non-Eligible FBOs, and may not be
exercised more than once during the period from the Refinancing Term Loan
Disbursement Date through and including the date on which all Obligations have
been indefeasibly paid in full and the Commitments under this Agreement have
terminated.
Section 7.2. Remedies Upon Event of Default.
(a) If any Event of Default occurs and is continuing, the
Administrative Agent may, and upon the request of the Required Lenders shall:
(i) by notice to the Borrower, declare the Commitments to be terminated,
whereupon the same shall forthwith terminate (except that any such termination
shall not affect the obligation of each Revolving Loan Lender to reimburse the
Issuing Bank in respect of any Drawing under a Letter of Credit issued pursuant
to Section 2.13 prior to such termination); (ii) by notice to the Borrower,
declare the entire unpaid principal amount of the Loans (together with all
accrued and unpaid interest thereon and any other amount then due under the Loan
Documents) and all other Obligations to be forthwith due and payable, whereupon
such amounts shall become and be forthwith due and payable, without presentment,
demand, protest, or notice of any kind, all of which are hereby expressly waived
by the Borrower; and/or (iii) instruct the Collateral Agent to foreclose on any
or all of the Collateral and/or proceed to enforce all remedies available to the
Administrative Agent (or Collateral Agent) pursuant to the Loan Documents or
otherwise as a matter of law. Notwithstanding the foregoing, if an Event of
Default referred to in Section 7.1(i) or (j) shall occur with respect to the
Borrower, automatically and without notice the actions described in clauses (i)
and (ii) above shall be deemed to have occurred.
(b) Without limiting the rights of the Administrative Agent set
forth in paragraph (a) above or elsewhere in this Agreement, if any Event of
Default or Revolver Event of Default occurs and is continuing, the Revolving
Loan Lender (with respect to the Revolving Loans only and irrespective of any
action or inaction taken with respect to the Term Loans) may, by notice to the
Borrower (in the case of a Revolver Event of Default which is not otherwise an
Event of Default, given not later than fifteen (15) days of the Revolving Loan
Lender receiving written notice of the occurrence of such Revolver Event of
Default), (i) declare the Revolving Loan Commitments to be terminated, whereupon
the same shall forthwith terminate (except that any such termination shall not
affect the obligation of the Revolving Loan Lender to reimburse the Issuing Bank
in respect of any Drawing under a Letter of Credit issued pursuant to Section
2.13 prior to such termination); and/or (ii) declare the entire unpaid principal
amount of the Revolving Loans (together with all accrued and unpaid interest
thereon and any other amount then due under the Loan Documents) and all other
Obligations owing to the Revolving Loan Lender to be forthwith due and payable,
whereupon such amounts shall become and be forthwith
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due and payable, without presentment, demand, protest, or notice of any kind,
all of which are hereby expressly waived by the Borrower. Any such acceleration
of the Obligations owed to the Revolving Loan Lender shall not alter or affect
the limitations on remedies specified in paragraph (c) below.
(c) Subject to paragraph (d) below, no Financing Party may, except
with the prior consent of the Required Lenders (i) enforce any security interest
created or evidenced by any Security Document or require the Administrative
Agent to enforce any such security interest (provided that the foregoing shall
not limit any right of setoff by a Lender permitted hereunder); (ii) sue for or
institute any creditor's process (including an injunction, garnishment,
execution or levy, whether before or after judgment) in respect of any
Obligation (whether or not for the payment of money) owing to it under or in
respect of any Loan Document; (iii) take any step for the winding-up,
administration of or dissolution of, or any insolvency proceeding in relation
to, the Borrower, or for a voluntary arrangement, scheme of arrangement or other
analogous step in relation to the Borrower, or (iv) apply for any order for an
injunction or specific performance in respect of the Borrower in relation to any
of the Loan Documents.
(d) If the Revolving Loans and interest thereon are not repaid in
full on the Maturity Date, the Revolving Loan Lender may bring any action or
proceeding (i) for collection of such unpaid amounts and other amounts due and
owing to the Revolving Loan Lender with respect thereto and (ii) for the
recognition or enforcement of any judgment with respect to such unpaid amounts
and such other amounts. Notwithstanding the foregoing, as long as any real
property is included in the Collateral, the Revolving Loan Lender shall not
exercise any rights or remedies that could reasonably be expected to result in
the loss of the Collateral Agent's Lien on the Collateral pursuant to the
California "one action" rule or any similar rule of any other jurisdiction.
Notwithstanding anything in the foregoing to the contrary, the Revolving Loans
shall at all times be secured by the Lien pursuant to the Security Documents,
subject to the direction of the Required Lenders.
Section 7.3. Waiver of Event of Default.
Any Event of Default may be waived as provided in Section 10.1. No waiver
of any Event of Default shall constitute a waiver of any other or any succeeding
Event of Default except to the extent specifically provided in such waiver.
ARTICLE VIII
ADMINISTRATIVE AGENT
Section 8.1. Appointment and Authorization of Administrative Agent.
Each Financing Party hereby appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any
74
duties or responsibilities, except those expressly set forth herein, nor shall
the Administrative Agent have or be deemed to have any fiduciary relationship
with any Financing Party or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Legal Requirement. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
Section 8.2. Delegation of Duties.
The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
Section 8.3. Liability of Administrative Agent.
None of the Administrative Agent, its officers, directors, employees,
agents, attorneys-in-fact and Affiliates shall (a) be liable for any action
taken or omitted to be taken by any of them under or in connection with this
Agreement or any other Loan Document or the transactions contemplated hereby
(except for its own gross negligence or willful misconduct in connection with
its duties expressly set forth herein), or (b) be responsible in any manner to
any Financing Party or participant for any recital, statement, representation or
warranty made by any Loan Party or any officer thereof, contained herein or in
any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of any Loan Party or
any other party to any Loan Document to perform its obligations hereunder or
thereunder. None of the Administrative Agent and any of its officers, directors,
employees, agents, attorneys-in-fact and Affiliates shall be under any
obligation to any Financing Party or participant to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party or any Affiliate thereof.
Section 8.4. Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and
75
statements of legal counsel (including counsel to any Loan Party), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under any Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Financing
Parties against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders.
Section 8.5. Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default or Event of Default, except with respect to
defaults in the payment of principal, interest and fees required to be paid to
the Administrative Agent for the account of the Financing Parties, unless the
Administrative Agent shall have received written notice from a Financing Party
or the Borrower referring to this Agreement, describing such Default and stating
that such notice is a "notice of default." The Administrative Agent will notify
the Financing Parties of its receipt of any such notice. The Administrative
Agent shall take such action with respect to such Default or Event of Default as
may be directed by the Required Lenders (or such other number or percentage of
Lenders as shall be necessary under the circumstances as provided in Section
10.1; provided, that unless and until the Administrative Agent has received any
such direction, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best interest
of the Financing Parties.
Section 8.6. Credit Decision; Disclosure of Information.
Each Financing Party acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representation or warranty to it, and that no act by the
Administrative Agent hereafter taken, including any consent to and acceptance of
any assignment or review of the affairs of any Loan Party or any Affiliate
thereof, shall be deemed to constitute any representation or warranty by the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates to any Financing Party as to any matter,
including whether the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates have disclosed material
information in their possession. Each Financing Party represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates and based on such documents and information as
it has deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower hereunder. Each Financing Party also represents
that it will, independently and without reliance upon the
76
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower. Except for notices,
reports and other documents expressly required to be furnished to the Financing
Parties by the Administrative Agent herein, the Administrative Agent shall not
have any duty or responsibility to provide any Financing Party with any credit
or other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Borrower or any of its
Affiliates which may come into the possession of the Administrative Agent or any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
Section 8.7. Indemnification.
To the extent that the Borrower fails to pay any amount required to be
paid by it to the Administrative Agent or any Indemnitee, each Financing Party
severally agrees to pay to the Administrative Agent or such Indemnitee such
Financing Party's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount. The undertaking in this Section 8.7 shall survive termination of the
Commitments, the payment of all Obligations and the resignation of the
Administrative Agent.
Section 8.8. Administrative Agent in Its Individual Capacity.
The Administrative Agent and its Affiliates may make loans to, issue
letters of credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with each of the Loan Parties and their
respective Affiliates as though the Administrative Agent were not the
Administrative Agent hereunder and without notice to or consent of the Financing
Parties. The Financing Parties acknowledge that, pursuant to such activities,
the Administrative Agent or its Affiliates may receive information regarding any
Loan Party or its Affiliates (including information that may be subject to
confidentiality obligations in favor of such Loan Party or such Affiliate) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans or other Credit
Exposure, the Administrative Agent shall have the same rights and powers under
this Agreement as any other Financing Party and may exercise such rights and
powers as though it were not the Administrative Agent.
Section 8.9. Collateral Agency Agreement.
Each Financing Party hereby authorizes the Administrative Agent and the
Collateral Agent to execute and deliver the Collateral Agency Agreement on
behalf of such Financing Party and agrees that, upon such execution and
delivery, such Financing Party shall be bound by the terms and provisions
thereof as if such Financing Party was a signatory thereto. Each Financing Party
further authorizes the Administrative Agent to exercise such powers and
discretion under each such agreement as are delegated to the Administrative
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto. As to matters not expressly
77
provided for in the Collateral Agency Agreement, the Administrative Agent shall
not be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders;
provided that the Administrative Agent shall not be required to take any action
that exposes it to personal liability or that is contrary to the Loan Documents
or applicable Legal Requirements.
Section 8.10. Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon 30 days'
prior written notice to the Lenders, and the Administrative Agent may be removed
at any time for cause by the Required Lenders. If the Administrative Agent
resigns under this Agreement or if the Administrative Agent is removed, the
Required Lenders shall appoint from among the Lenders a successor administrative
agent for the Lenders, which successor administrative agent shall be consented
to by the Borrower at all times other than during the existence of an Event of
Default (which consent of the Borrower shall not be unreasonably withheld or
delayed). If no successor administrative agent is appointed prior to the
effective date of the resignation or removal of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and the term
"Administrative Agent" shall mean such successor administrative agent, and the
retiring Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated. After any retiring Administrative Agent's resignation
or removal hereunder as Administrative Agent, the provisions of this Article
VIII and Section 10.3 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement. If no successor administrative agent has accepted appointment as
Administrative Agent by the date which is 30 days following a retiring
Administrative Agent's notice of resignation or removal, the retiring
Administrative Agent's resignation or removal shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above.
Section 8.11. Lead Arrangers.
The Lead Arrangers shall not have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, to the extent it is a
Lender or the Administrative Agent, those applicable to all Lenders or the
Administrative Agent, as the case may be, as such. Each Lender acknowledges that
it has not relied, and will not rely, on the Lead Arrangers in deciding to enter
into this Agreement or in taking or not taking action hereunder.
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ARTICLE IX
HEDGING ARRANGEMENTS
Section 9.1. Hedging Payments.
Each Hedging Bank agrees that it shall not (i) demand (other than as may
be necessary in order to exercise any right to terminate any Hedging Transaction
pursuant to a Hedging Agreement as permitted under Section 9.2 or required under
Section 9.3) or receive payment, prepayment or repayment of, or any distribution
in respect of, or on account of, any of the Hedging Obligations in cash or in
kind, or apply any money or property in or towards the discharge of any Hedging
Obligations except for scheduled payments arising under the terms of the Hedging
Agreements, or (ii) permit to exist or receive any security interest or any
financial support (including the giving of any guarantee or the making of any
deposit or payment) for or in respect of any of the Hedging Obligations other
than under the Loan Documents.
Section 9.2. Voluntary Termination.
Each Hedging Bank agrees that it may terminate a Hedging Transaction
pursuant to a Hedging Agreement only upon the occurrence of any of the following
events: (i) the Administrative Agent has declared that all of the amounts
outstanding under the Loan Documents are immediately due and payable or such
acceleration has occurred without notice from the Administrative Agent pursuant
to Section 7.2(a), (ii) the Required Lenders have directed the Administrative
Agent to seek a lifting of the automatic stay or any other stay in any
Bankruptcy Proceeding so as to permit an acceleration of all of the amounts
outstanding under the Loan Documents pursuant to Section 7.2(a), (iii) early
termination is permitted in accordance with the terms of such Hedging Agreement
by the Hedging Bank in the event it becomes unlawful for such Hedging Bank to
perform any absolute or contingent obligation under such Hedging Agreement, (iv)
early termination is permitted in accordance with the terms of such Hedging
Agreement upon the occurrence of a tax event or tax event upon merger, (v) the
Administrative Agent has requested such termination in accordance with Section
9.3, (vi) the Loans are repaid in full, or (vii) an Event of Default occurs
under Section 7.1(a) with respect to the Hedging Agreements entered into by such
Hedging Bank.
Section 9.3. Involuntary Termination or Reduction.
(a) If the Administrative Agent has declared that all of the amounts
outstanding under the Loan Documents are immediately due and payable or such
acceleration has occurred without notice from the Administrative Agent pursuant
to Section 7.2(a), each Hedging Bank agrees that, at the written request of the
Administrative Agent (acting at the direction of the Required Lenders), such
Hedging Bank shall exercise its rights to terminate all hedging transactions
under each Hedging Agreement to which it is a party.
(b) If the aggregate notional amounts hedged under the Hedging
Agreements exceed by more than ten percent (10%) of the aggregate principal
amount of the Loans for a period of more than sixty (60) days, the Borrower
shall reduce the amounts hedged under the Hedging Agreements (allocated ratably
among the Hedging Agreements according to the respective amounts hedged
thereunder) to a level equal to 100% of the Loans outstanding.
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Section 9.4. Agreement to be Bound by Loan Documents; Benefit of Lien of
Security Documents.
By entering into a Hedging Agreement entitling it to the benefits of the
Loan Documents, each Hedging Bank shall be deemed to have agreed to be bound by
the provisions set forth in this Agreement and the Collateral Agency Agreement
applicable to Hedging Banks and Financing Parties. So long as the terms thereof
are in compliance with this Agreement, each Hedging Agreement shall be secured
by the Liens created by the Security Documents on a pari passu basis.
ARTICLE X
MISCELLANEOUS
Section 10.1. Amendments; Waivers.
(a) No amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by the Borrower or any
other Loan Party therefrom, shall be effective unless in writing signed by the
Required Lenders and the Borrower or other applicable Loan Party, as the case
may be, and acknowledged by the Administrative Agent; provided that no such
amendment, waiver or consent shall: (i) extend or increase the Commitment of any
Lender without the written consent of such Lender; (ii) postpone any date fixed
by this Agreement or any other Loan Document for any payment or mandatory
prepayment of principal, interest, fees or other amounts due to the Lenders (or
any of them), or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender directly affected thereby; (iii)
reduce the principal of, or the rate of interest specified herein on, any Loan,
or any fees or other amounts payable hereunder or under any other Loan Document,
or change any financial ratio or the manner of calculation of any financial
ratio (including any change in any applicable defined term) used in determining
the amount of any mandatory prepayment that would result in a reduction of any
such prepayment, without the written consent of each Lender directly affected
thereby; (iv) change Section 2.12 in a manner that would alter the pro rata
sharing of payments required thereby without the written consent of each Lender;
(v) change any provision of this Section 10.1 or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; (vi) release any Guarantor from the Subsidiary Guaranty, or (vii)
release all or any material part of the Collateral without the written consent
of each Lender and Hedging Bank (except that (A) any release in connection with
a sale or other disposition of Collateral authorized by Section 6.2(c) shall not
require the approval of any Lender or Hedging Bank) and (B) any amendment,
waiver or consent which modifies the terms of Section 6.2(c) (including any
modification relating to the prepayment of proceeds from any such sale or other
disposition) shall require the consent of the Required Lenders); and provided,
further, that (A) no amendment, waiver or consent shall, without the written
consent of the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document, (B) no amendment, waiver or consent shall, without the
written consent of the Issuing Bank in addition to the Lenders required above,
affect the rights or duties of the Issuing Bank under this Agreement or
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any other Loan Document (C) no amendment, waiver or consent shall, without the
written consent of each Hedging Bank directly affected thereby in addition to
the Lenders required above, affect the rights or duties of such Hedging Bank
under this Agreement or any other Loan Document, and (D) any separate fee
agreement between the Borrower and the Administrative Agent in its capacity as
such or between the Borrower and the Lead Arrangers in their capacities as such
may be amended or modified by such parties; and provided, further, that any
waiver of conditions precedent set forth in Section 4.1(h) or Section 4.3(k)
which relate to the perfection of a security interest in Collateral can be
waived by the Administrative Agent in its discretion, provided that such
condition shall instead be satisfied after the applicable Disbursement Date, and
within time periods established by the Administrative Agent in its discretion;
and provided, further, that (A) no amendment, waiver or consent shall, without
the written consent of the Revolving Loan Lender, in addition to the Lenders
required above, be effective for purposes of determining the obligation of the
Revolving Loan Lender to make Revolving Loans or the existence or non-existence
of a Revolver Event of Default, or the rights of the Revolving Loan Lender
specified in Section 7.2(b), and (B) no amendment, waiver or consent shall,
without the written consent of the Issuing Bank, in addition to the Lenders
required above, be effective for purposes of determining the obligation of the
Issuing Bank to issue Letters of Credit.
(b) No failure or delay by the Administrative Agent or any Lender in
exercising any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the
Lenders hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (a) of this Section
10.1, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time.
Section 10.2. Notices.
(a) Unless otherwise expressly provided herein, (and subject to
paragraph (c) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
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(i) if to the Borrower:
North America Capital Holding Company
6504 International Parkway
Suite 1100
Plano, Texas 75093
Attention: Chris C. Dierks
Telephone: (972) 447-4205
Facsimile: (972) 447-4229
with a copy to:
Macquarie Infrastructure Company Inc.
125 West 55th Street
New York, New York 10019
Attention: David Mitchell
Telephone: (212) 231-1814
Facsimile: (212) 231-1828
and
Pillsbury Winthrop Shaw Pittman LLP
1650 Tysons Boulevard
McLean, Virginia 22102
Attention: Craig E. Chason, Esq.
Telephone: (703) 770-7947
Facsimile: (703) 770-7901
(ii) if to the Administrative Agent:
Mizuho Corporate Bank, Ltd.
Project Finance
1251 Avenue of the Americas, 32 Fl.,
New York, New York 10020
Attention: Willie Freeman, Vice President
Telephone: (212) 282-3547
Facsimile: (212) 282-3618
and
Mizuho Corporate Bank, Ltd.
Loan Administration
1800 Plaza Ten
Jersey City, New Jersey 07311
Attention: Betty Ali, Vice President
Telephone: (201) 626-9820
Facsimile: (201) 626-9935
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(iii) if to the Revolving Loan Lender or the Issuing Bank:
Mizuho Corporate Bank, Ltd.
Loan Administration
1800 Plaza Ten
Jersey City, New Jersey 07311
Attention: Betty Ali, Vice President
Telephone: (201) 626-9820
Facsimile: (201) 626-9935
(iv) if to any Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
(b) Loan Documents may be transmitted and/or signed by facsimile.
The effectiveness of any such documents and signatures shall, subject to
applicable Legal Requirements, have the same force and effect as manually-signed
originals and shall be binding on all Loan Parties, the Administrative Agent and
the Lenders. The Administrative Agent may also require that any such documents
and signatures be confirmed by a manually-signed original thereof; provided that
the failure to request or deliver the same shall not limit the effectiveness of
any facsimile document or signature.
(c) Electronic mail and internet and intranet websites may be used
only to distribute routine communications, such as Financial Statements and
other information as provided in Section 6.1(a), and to distribute Loan
Documents for execution by the parties thereto, and may not be used for any
other purpose.
(d) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the Borrower and the
Administrative Agent. All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt.
Section 10.3. Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and the Collateral Agent, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent and the Collateral Agent, in connection with the preparation, negotiation
and execution of this Agreement and the other Loan Documents and any amendment,
modification or waiver of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), the
syndication of the credit facilities provided for herein, and administration of
the transactions contemplated hereby and thereby, and (ii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, the Collateral
Agent or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent or the Collateral Agent, in connection with
the enforcement, attempted enforcement or protection of its rights in connection
with this Agreement or any other Loan Document, including its rights under this
Section, or in connection with the Loans made hereunder, including all such
reasonable out-of-pocket expenses incurred during any workout,
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restructuring or negotiations in respect of the Obligations; provided that the
Borrower shall not be liable for the expenses of separate counsel to any Lender.
(b) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, and each of the officers, directors, employees,
agents, attorneys-in-fact and Affiliates of any of the foregoing Persons (each
such Person being called an "INDEMNITEE") against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of any Loan
Document or any agreement or instrument contemplated thereby, the performance by
the parties hereto of their respective obligations hereunder or thereunder or
the consummation of the transactions contemplated thereby, (ii) any Commitment,
Loan or Letter of Credit issued pursuant to Section 2.13 or the use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under any such Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by any Loan Party, or
liability under any Environmental Laws related in any way to any Loan Party, or
(iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee. As used in this clause (b), the term "fees, charges and
disbursements of any counsel for any Indemnitee" shall include allocable costs
and expenses of such Indemnitees's in-house legal counsel and staff (to the
extent in substitution for, and not duplicative of, outside counsel and outside
appraisal, audit, environmental and other similar services).
(c) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement, any other Loan Document, or any agreement or
instrument contemplated hereby or arising out of the activities in connection
herewith or therewith.
(d) All amounts due under this Section 10.3 shall be payable not
later than ten (10) Business Days after written demand therefor.
(e) The agreements in this Section 10.3 shall survive the
termination of the Commitments and repayment of all other Obligations.
Section 10.4. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that (i) the Borrower may not assign or otherwise
transfer any of its rights or obligations
84
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section 10.4. Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants (to the extent provided in paragraph (c) of this
Section 10.4) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) (i)Any Lender may assign to one or more Eligible Assignees
approved by the Administrative Agent and (so long as no Event of Default is
continuing) the Borrower (which approvals shall not be unreasonably withheld or
delayed) all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to
it); provided that (A) no approval of the Administrative Agent shall be required
for any assignment to an assignee that is a Lender immediately prior to giving
effect to such assignment, (B) each assignee Lender shall provide appropriate
assurances and indemnities to the Issuing Bank as it may reasonably require with
respect to any continuing obligation to purchase participation interests in any
Drawing or other Reimbursement Obligation, (C) except in the case of an
assignment to a Lender or an Affiliate of a Lender or an assignment of the
entire remaining amount of the assigning Lender's Loans and Commitment, the
amount of the Loans and Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 unless each of the Administrative Agent and, so long as no Event
of Default has occurred and is continuing, the Borrower otherwise consents; (D)
each partial assignment shall be made as an assignment of a proportionate part
of all the assigning Lender's rights and obligations under this Agreement; (E)
the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee of $3,500 and any required tax forms; and (F) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
(ii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section 10.4, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
3.1, 3.3, 3.4 and 10.3). Upon request, the Borrower (at its expense) shall
execute and deliver a Note to the assignee Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 10.4 shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (c) of this Section 10.4.
85
(iii) The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at one of its offices a copy
of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans owing to, each Lender pursuant to
the terms hereof from time to time (the "REGISTER"). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
(iv) Upon its receipt of a duly completed Assignment and
Assumption and required tax forms executed by an assigning Lender and an
Eligible Assignee, the assignee's completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder) and the
processing and recordation fee referred to in paragraph (b)(i) of this
Section 10.4, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register.
No assignment shall be effective for purposes of this Agreement unless it
has been recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of or notice to the
Borrower or the Administrative Agent, sell participations to one or more banks
or other entities (each, a "PARTICIPANT") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (A) such Lender's
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
10.1(a) that affects such Participant. Subject to Paragraph (c)(ii) of this
Section 10.4, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.1, 3.3 and 3.4 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to Paragraph (b) of this
Section 10.4.
(ii) A Participant shall not be entitled to receive any
greater payment under Section 3.1, 3.4 or 3.5 than the applicable Lender
would have been entitled to receive with respect to the participation sold
to such Participant. Without limitation of the preceding sentence, (i) a
Participant that would be a Foreign Lender if it were a Lender shall not
be entitled to the benefits of Section 3.1 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees,
for the benefit of the Borrower, to comply with Section 3.1(e) as though
it were a Lender and (ii) a Participant that is a United States resident
individual shall not be entitled to the benefits
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of Section 3.1 as if it were a Lender unless the Participant agrees to
comply with Section 3.1(g) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section 10.4 shall not apply to any such pledge
or assignment of a security interest; provided that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
Section 10.5. Confidentiality.
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any Governmental
Authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement
or any other Loan Document, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any suit, action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section 10.5, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement or its advisers, or (ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information becomes
publicly available other than as a result of a breach of this Section 10.5. For
the purposes of this Section, "INFORMATION" means all information received from
the Borrower relating to any Loan Party or its business, other than any such
information that is available to the Administrative Agent or any Lender on a
non-confidential basis from a source other than the Borrower or any of its
Affiliates that is not prohibited from transmitting the information to the
Administrative Agent or such Lender by a contractual or legal obligation. Any
Person required to maintain the confidentiality of Information as provided in
this Section 10.5 shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
Section 10.6. Limitation on Interest.
Notwithstanding anything to the contrary contained in any Loan Document,
the interest and fees paid or agreed to be paid under the Loan Documents shall
not exceed the maximum rate of non-usurious interest permitted by applicable
Legal Requirement (the "MAXIMUM RATE"). If the Administrative Agent or any
Lender shall receive interest or a fee in an amount that exceeds the Maximum
Rate, the excessive interest or fee shall be applied to the principal of the
outstanding Obligations or, if it exceeds the unpaid principal, refunded to the
Borrower. In determining whether the interest or a fee contracted for, charged,
or received by the
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Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Legal Requirement, (a) characterize any
payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize, prorate, allocate, and spread in equal or unequal parts the total
amount of interest throughout the contemplated term of the Obligations.
Section 10.7. Right of Setoff.
If an Event of Default shall have occurred and be continuing, each Lender
and each of its Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other obligations at any time owing by such Lender or Affiliate to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured;
provided that if any such set off is effected prior to acceleration of the Loans
pursuant to Section 7.2 and all Events of Default are cured prior to any such
acceleration, such set off (other than any portion thereof that has been applied
against matured Obligations) shall be rescinded and the deposits and other
amounts so set off (other than such portion) shall be restored to the Borrower,
without interest, not later than three (3) Business Days after the
Administrative Agent has notified the Lenders in writing that no Event of
Default is continuing or, if the benefit of such set off has been shared by the
Lenders in accordance with Section 2.12, promptly after such Lender receives the
corresponding payments from other Lenders. The rights of each Lender under this
Section 10.7 are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
Section 10.8. Nonliability of Lenders.
The Borrower acknowledges and agrees that:
(a) Any inspections of any property of the Borrower made by or
through the Administrative Agent or Lenders are for purposes of administration
of the Loan Documents only, and the Borrower is not entitled to rely upon the
same (whether or not such inspections are at the expense of the Borrower);
(b) The relationship between the Borrower and the Administrative
Agent and Lenders is, and shall at all times remain, solely that of borrower and
lenders; neither the Administrative Agent nor any Lender shall under any
circumstance be construed to be partners or joint venturers of any Loan Party or
its Affiliates; neither the Administrative Agent nor any Lender shall under any
circumstance be deemed to be in a relationship of confidence or trust or a
fiduciary relationship with any Loan Party or its Affiliates, or to owe any
fiduciary duty to any Loan Party or its Affiliates; neither the Administrative
Agent nor the Lenders undertake or assume any responsibility or duty to any Loan
Party or its Affiliates to select, review, inspect, supervise, pass judgment
upon or inform any such Person of any matter in connection with the operations
of such Person; each Loan Party and its Affiliates shall rely entirely upon
their own judgment with respect to such matters; and any review, inspection,
supervision, exercise of judgment or supply of information undertaken or assumed
by the Administrative Agent or any
88
Lender in connection with such matters is solely for the protection of the
Administrative Agent and each Lenders and neither any Loan Party nor any other
Person is entitled to rely thereon; and
Section 10.9. Limitation of Recourse.
There shall be full recourse to the Borrower and all of its assets and
properties for the liabilities of the Borrower under this Agreement, any Notes
and the other Loan Documents, subject to clauses (i) and (iv) of the following
sentence, in no event shall the Investor or any of their Affiliates (other than
any Loan Party) (collectively, the "NON-RECOURSE PARTIES"), or any officer or
director of the Borrower, be personally liable or obligated for such liabilities
and obligations of the Borrower, except as may be specifically provided in any
other Loan Document to which such Non-Recourse Party is a party. Nothing herein
contained shall limit or be construed to (i) release any Non-Recourse Party from
liability for its fraudulent actions or misappropriation of funds by it or
willful misconduct or for reimbursement of any Distribution made to it in
violation of Section 6.2(f), or from any of its obligations or liabilities under
any agreement executed by such Non-Recourse Party in its individual capacity in
connection with any Loan Document, (ii) limit or impair the exercise of remedies
with respect to any Collateral, (iii) limit the liability of any Person who is a
party to a Loan Document with respect to such liability as may arise by reason
of the terms and conditions of such Loan Document (but subject to any limitation
of liability contained in such Loan Document), or (iv) require the Financing
Parties to indemnify the Non-Recourse Parties for liabilities or claims that may
be independently asserted against them. The provisions of this Section 10.9
shall survive the termination of this Agreement.
Section 10.10. Integration.
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. For the avoidance of doubt, each Loan Document (other than the
Original Loan Agreement) entered into prior to the date hereof shall continue to
be, and shall remain, in full force and effect, shall be binding upon the
parties thereto in accordance with their respective terms, and are hereby
ratified and confirmed, except that references in such Loan Documents to the
Original Loan Agreement shall be deemed to be made to this Agreement. In the
event of any conflict between the provisions of this Agreement and those of any
other Loan Document, the provisions of this Agreement shall control; provided
that the inclusion of supplemental rights or remedies in favor of the
Administrative Agent or the Lenders in any other Loan Document shall not be
deemed a conflict with this Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
Section 10.11. Survival of Representations and Warranties.
All representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and any Notes.
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Section 10.12. Governing Law.
This Agreement shall be governed by and construed in accordance with the
law of the State of New York.
Section 10.13. Submission To Jurisdiction; Waiver of Jury Trial.
(a) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, solely for purposes of any action or proceeding arising out of
or relating to this Agreement (and not as a general submission to New York law),
or for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement against the
Borrower or its properties in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (a) of this Section 10.13. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.2. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
(d) EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT
IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUR OF OR RELATING
TO ANY LOAN DOCUMENT OR THE TRANSACTION CONTEMPLATED HEREBY OR THEREBY (WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE). EACH PARTY HERETO ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
Section 10.14. Severability.
If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
90
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Section 10.15. Headings.
The table of contents and the headings of Articles, Sections, Exhibits and
Schedules have been included herein for convenience of reference only, are not
part of this Agreement, and shall not be taken into consideration in
interpreting this Agreement.
Section 10.16. Counterparts.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the copies of this Agreement signed by all the parties shall be maintained by
the Borrower and the Administrative Agent.
[signature pages to follow]
91
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
NORTH AMERICA CAPITAL HOLDING COMPANY,
as Borrower
By: /s/ Louis T. Pepper
-----------------------------------
Name: Louis T. Pepper
Title: CEO
By: /s/ Chris C Dierks
-----------------------------------
Name: Chris C Dierks
Title: CFO
MIZUHO CORPORATE BANK, LTD.,
as Administrative Agent
By: /s/ Christopher Stolarski
-----------------------------------
Name: Christopher Stolarski
Title: Senior Vice President
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND,
as Term Loan Lender
By: /s/ A.H.C. Hartley
-----------------------------------------
Name: A.H.C. Hartley
Title: Head of Infrastructure Project Finance
By: /s/ J.S. Shepherdson
-----------------------------------------
Name: J.S. Shepherdson
Title: Director, Project Finance
BAYERISCHE LANDESBANK, NEW YORK BRANCH,
as Term Loan Lender
By: /s/ Thomas Augustin
----------------------------------
Name: Thomas Augustin
Title: Vice President
By: /s/ Norman McClave
----------------------------------
Name: Norman McClave
Title: First Vice President
MIZUHO CORPORATE BANK, LTD.,
as Term Loan Lender
By:/s/ Christopher Stolarski
---------------------------------------
Name: Christopher Stolarski
Title: Senior Vice President
MACQUARIE BANK LIMITED,
as Term Loan Lender
By: /s/ Byron Beath
---------------------------------------
Name: Byron Beath
Title: Senior Manager
By: /s/ Peter Farthing
---------------------------------------
Name: Peter Farthing
Title: Legal Counsel, Investment
Banking Group
BANCO SANTANDER CENTRAL HISPANO,
S.A., as Term Loan Lender
By: /s/ Jose Castello
---------------------------------------
Name: Jose Castello
Title: Managing Director, Head of U.S.
Global Corporate Banking
By: /s/ Ignacio Campillo
---------------------------------------
Name: Ignacio Campillo
Title: Executive Director, Grupo
Santander
DEKABANK DEUTSCHE GIROZENTRALE, as
Term Loan Lender
By: /s/ Stephan Wagner
---------------------------------------
Name: Stephan Wagner
Title: Director
By: /s/ Marcus Kempf
---------------------------------------
Name: Marcus Kempf
Title: Credit Manager
HYPO PUBLIC FINANCE USA, INC., as Term
Loan Lender
By:_______________________________________
Name: Nancy Henderson
Title: Vice President
By: /s/ Thomas Savino
---------------------------------------
Name: Thomas Savino
Title: Managing Director
LANDESBANK HESSEN-THURINGEN
GIROZENTRALE, as Term Loan Lender
By: /s/ Michael D. Novack
---------------------------------------
Name: Michael D. Novack
Title: Vice President
By: /s/ Christian Brune
---------------------------------------
Name: Christian Brune
Title: Senior Vice President
LLOYDS TSB BANK plc, as Term Loan Lender
By: /s/ Paul D. Briamonte
---------------------------------------
Name: Paul D. Briamonte
Title: Director - Project Finance
By: /s/ Cherian Thomas
---------------------------------------
Name: Cherian Thomas
Title: Assistant Vice Pesident -
Poject Finance
NORDDEUTSCHE LANDESBANK
GIROZENTRALE, as Term Loan Lender
By: /s/ Bulent Osma
---------------------------------------
Name: Bulent Osma
Title: Vice Pesident
By: /s/ Stefanie Scholz
---------------------------------------
Name: Stefanie Scholz
Title: Vice Pesident
UNITED OVERSEAS BANK LIMITED, as Term
Loan Lender
By: /s/ George Lim
---------------------------------------
Name: George Lim
Title: FVP & General Manager
By: /s/ Mario Sheng
---------------------------------------
Name: Mario Sheng
Title: AVP
MIZUHO CORPORATE BANK, LTD.,
as Revolving Loan Lender and Issuing Bank
By:/s/ Christopher Stolarski
---------------------------------------
Name: Christopher Stolarski
Title: Senior Vice President
APPENDIX A
DEFINITIONS AND RULES OF INTERPRETATION
APPENDIX A
DEFINITIONS AND RULES OF INTERPRETATION
DEFINED TERMS
"Acceptable Issuer" means a bank or other financial institution with a
combined capital and surplus of at least $1,000,000,000 whose Reference Debt is
rated "A-" or higher by S&P and "A3" or higher by Moody's.
"Accounts" means, collectively, (1) the Debt Service Reserve Account, (2)
the Special Reserve Account, (3) the Loss Proceeds Account and (4) the
Distribution Account.
"Acquisition Documents" means, collectively, Executive Air Purchase
Agreement, the GAH Purchase Agreement, the Eagle Aviation Purchase Agreement,
the Amports Purchase Agreement and the Trajen Purchase Agreement, each as
defined in Schedule A-3 to this Agreement.
"Acquisitions" means the acquisition by Macquarie FBO Holdings LLC or any
of its Affiliates of the Businesses pursuant to the Acquisition Documents.
"Actual Knowledge" means, (i) as used in Sections 4.1 and 4.2 of this
Agreement, the earlier of actual knowledge of, or receipt of written notice by,
any Responsible Officer of the Borrower, and (ii) as used in any other section
of this Agreement or any other Loan Document, with respect to any Person, the
earlier of actual knowledge of, or receipt of written notice by, any Responsible
Officer of such Person or, with respect to the operations of, or any other
matters relating to, an FBO operated by a Subsidiary of the Borrower, the
General Manager of such FBO.
"Administrative Agent" means Mizuho Corporate Bank, Ltd., in its capacity
as administrative agent for the Lenders under the Loan Documents, and any
successor administrative agent appointed pursuant to the terms of this
Agreement.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" of a particular Person means, at any time, (a) any other
Person directly or indirectly controlling, controlled by, or under common
control with, such Person and (b) any Person beneficially owning or holding,
directly or indirectly, 10% or more of any class of securities having ordinary
voting power for the election of directors or other members of the governing
body of a corporation or other Person, or 10% or more of any partnership or
other ownership interests of any other Person. For purposes of this definition,
"control" when used with respect to any particular Person means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person whether through the ownership of voting
securities or partnership or other ownership interests, by contract or
otherwise, and the terms "controlling" "controlled by" and "under common control
with" have meanings correlative to the foregoing; provided, however, that under
no circumstances shall the Administrative Agent or the Collateral Agent be
considered to be an Affiliate of any Person solely because any Transaction
Document contemplates that any of them may request or act at the instruction of
any such Person or such Person's Affiliate. An Affiliate shall include any
manager of Macquarie Infrastructure Company Trust and any Affiliate thereof.
"Agreement" has the meaning specified in the preamble hereto.
"Airport Authority" means any governmental or airport authority party to a
Material Contract.
"Amendment Fees" means the amendment fees payable by the Borrower to the
lenders party to the Original Loan Agreement that have consented to the
transactions contemplated by this Agreement, in amounts as set forth in fee
letters separately agreed to between MIC and each of the Lead Arrangers and the
Co-Lead Arranger.
"Amports" means American Port Services, Inc., a Delaware corporation.
"Amports Acquisition" means the consummation of the purchase of all of the
outstanding Equity Securities of Amports by Macquarie Aviation North America
Inc. and Macquarie Aviation North America 2 Inc. pursuant to the Amports
Purchase Agreement (as defined in Schedule A-3 hereto).
"Applicable Leverage Ratio" means, as of the Calculation Date for any
fiscal quarter occurring during the periods set forth below, the following
Leverage Ratios:
Fiscal Quarters During the Period: Leverage Ratio
- ----------------------------------------------------------------------------- --------------
From the third (3rd) anniversary of the Refinancing Term Loan Disbursement
Date to but excluding the fourth (4th) anniversary of the Refinancing Term
Loan Disbursement Date: 5.50 to 1.00
From the fourth (4th) anniversary of the Refinancing Term Loan Disbursement
Date to but excluding the date that is six (6) months prior to the Maturity
Date: 5.00 to 1.00
From the date that is six (6) months prior to the Maturity Date through
payment in full of the Loans: 4.50 to 1.00
"Applicable Margin" means, for each day with respect to a Term Loan or
LIBOR Revolving Loan, as applicable, the following rates per annum:
PERIOD MARGIN (PER ANNUM)
- -------------------------------------------------- ------------------
From and including the
Refinancing Term Loan Disbursement Date to but
excluding the third (3rd) anniversary of the
Refinancing Term Loan Disbursement Date: 1.75%
From and including the third (3rd) anniversary of
the Refinancing Term Loan Disbursement Date until
the Maturity Date or the Revolving Loan Commitment
Termination Date, as applicable: 2.00%
"Applicable Minimum EBITDA" means, as of a Calculation Date occurring
during the fiscal years specified below, the following EBITDA values calculated
for the twelve (12) month period ending on such Calculation Date:
MINIMUM EBITDA MINIMUM EBITDA
BEFORE TRAJEN AFTER TRAJEN
ACQUISITION TERM ACQUISITION TERM
LOAN DISBURSEMENT LOAN DISBURSEMENT
FISCAL YEAR DATE DATE
- ----------- ----------------- -----------------
2005 $40,100,000 $40,100,000
2006 $40,100,000 $66,900,000
2007 $43,450,000 $71,900,000
2008 $47,000,000 $77,500,000
"Applicable Percentage" means, at any time, an amount expressed as a
percentage equal to a Financing Party's Outstanding Exposure divided by the
aggregate then Outstanding Exposure of all Financing Parties.
"Assignment and Assumption" means an Assignment and Assumption in the form
of Exhibit G or any other form approved by the Administrative Agent.
"Available Commitment" means, as to a Lender, at any time, an amount equal
to its Available Term Loan Commitment and/or Available Revolving Loan
Commitment.
"Available Revolving Loan Commitment" means, at any time, an amount equal
to the excess, if any, of (a) the amount of the Revolving Loan Lender's
Revolving Loan Commitment, minus (b) the aggregate principal amount of all
Revolving Loans made by the Revolving Loan Lender prior to such time, minus (c)
the aggregate outstanding Letter of Credit Usage, minus (c) any portion of the
Revolving Loan Commitment terminated pursuant to Section 2.7 of this Agreement.
"Available Term Loan Commitment" means, as to any Term Loan Lender, the
Available Refinancing Term Loan Commitment and the Available Trajen Acquisition
Term Loan Commitment, as applicable.
"Available Refinancing Term Loan Commitment" means, as to any Term Loan
Lender, at any time, an amount equal to the excess, if any, of (a) the amount of
such Lender's aggregate Refinancing Term Loan Commitment, minus (b) the
aggregate principal amount of all Refinancing Term Loans made by such Lender
prior to such time, minus (c) any portion of the Refinancing Term Loan
Commitment of such Lender terminated pursuant to Section 2.7 of this Agreement.
"Available Trajen Acquisition Term Loan Commitment" means, as to any Term
Loan Lender, at any time, an amount equal to the excess, if any, of (a) the
amount of such Lender's aggregate Trajen Acquisition Term Loan Commitment, minus
(b) the aggregate principal amount of all Trajen Acquisition Term Loans made by
such Lender prior to such time, minus (c) any portion of the Trajen Acquisition
Term Loan Commitment of such Lender terminated pursuant to Section 2.7 of this
Agreement.
"Backward Debt Service Coverage Ratio" means, on each Calculation Date
commencing with the Calculation Date for the first full quarter ending after the
Refinancing Term Loan Disbursement Date, the Debt Service Coverage Ratio for the
Calculation Period ending on that Calculation Date.
"Bankruptcy Proceeding" means (a) any voluntary or involuntary case or
proceeding under title 11 of the United States Code (11 U.S.C. 101 et seq.), as
amended from time to time and any successor statute, (b) any other voluntary or
involuntary insolvency, reorganization, bankruptcy, receivership, liquidation,
reorganization, moratorium or other similar case or proceeding, (c) any
liquidation, dissolution, or winding up of the Borrower, or (d) any assignment
for the benefit of creditors or any other marshalling of assets and liabilities
of the Borrower.
"Base Case Projections" means the final financial projections for the
Borrower and its Subsidiaries on a consolidated basis, as revised from time to
time and as set forth in the computer model prepared by the Borrower and
delivered to the Administrative Agent immediately prior to the Refinancing Term
Loan Disbursement Date and the Trajen Acquisition Term Loan Disbursement Date,
as the case may be.
"Base Rate" means, for any day, a rate per annum equal to the greater of
(a) the Prime Rate or (b) the Federal Funds Rate in effect on such day plus 1/2
of 1%. Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective from and including the effective date of
such change in the Prime Rate or the Federal Funds Rate, respectively.
"Base Rate Loan" means any Loan with respect to which the applicable rate
of interest is based upon the Base Rate.
"Base Rate Revolving Loans" means, at any time, a Revolving Loan bearing
interest as provided in Section 2.3(a) of this Agreement.
"Borrower" has the meaning specified in the preamble to this Agreement.
"Borrowing" means a borrowing consisting of Term Loans or Revolving Loans
made by the applicable Lenders pursuant to this Agreement.
"Borrowing Request" means a Term Loan Borrowing Request or a Revolving
Loan Borrowing Request.
"Businesses" or "Business" means the airport services businesses or any
part thereof owned by the Borrower and operated by its Subsidiaries pursuant to
the FBO Leases, the Management Contracts and the Heliport Contract.
"Business Day" means any day that is not a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
remain closed; provided that, when used in connection with a Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Calculation Date" means each March 31, June 30, September 30 and December
31, occurring on or after the Refinancing Term Loan Disbursement Date.
"Calculation Period" means a period of twelve (12) months.
"Capital Lease" means any lease which in accordance with GAAP is required
to be capitalized on the balance sheet of the Borrower, and the amount of these
obligations shall be the amount so capitalized.
"Cash Available for Distribution" means, as of the last day of each fiscal
quarter of the Borrower, (a) Excess Cash Flow as of such date less (b) any
mandatory prepayments required to be paid from Excess Cash Flow.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Issuing Bank and the Revolving Loan
Lender, as collateral for the Obligations, cash or deposit account balances in
an amount equal to the Letter of Credit Obligations pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the Issuing Bank
(which documents are hereby consented to by the Revolving Loan Lender).
Derivatives of such term shall have a corresponding meaning.
"Cash Equivalents" means:
(a) Direct obligations of, or obligations the principal and interest
on which are unconditionally guaranteed by, the United States of America or
obligations of any agency of the United States of America to the extent such
obligations are backed by the full faith and credit of
the United States of America, in each case maturing within one year from the
date of acquisition thereof;
(b) Certificates of deposit maturing within one year from the date
of acquisition thereof issued by a commercial bank or trust company organized
under the laws of the United States of America or a state thereof or that is a
Lender; provided that (i) such deposits are denominated in Dollars, (ii) such
bank or trust company has capital, surplus and undivided profits of not less
than $100,000,000 and (iii) such bank or trust company has certificates of
deposit or other debt obligations rated at least A-1 (or its equivalent) by
Standard and Poor's Ratings Services or P-1 (or its equivalent) by Moody's
Investors Service, Inc.;
(c) Open market commercial paper maturing within 270 days from the
date of acquisition thereof issued by a corporation organized under the laws of
the United States of America or a state thereof, provided such commercial paper
is rated at least A-1 (or its equivalent) by Standard and Poor's Ratings
Services or P-1 (or its equivalent) by Moody's Investors Service, Inc.; and
(d) Any repurchase agreement entered into with a commercial bank or
trust company organized under the laws of the United States of America or a
state thereof or that is a Lender; provided that (i) such bank or trust company
has capital, surplus and undivided profits of not less than $100,000,000, (ii)
such bank or trust company has certificates of deposit or other debt obligations
rated at least A-1 (or its equivalent) by Standard and Poor's Ratings Services
or P-1 (or its equivalent) by Moody's Investors Service, Inc., (iii) the
repurchase obligations of such bank or trust company under such repurchase
agreement are fully secured by a perfected security interest in a security or
instrument of the type described in clause (a), (b) or (c) above and (iv) such
security or instrument so securing the repurchase obligations has a fair market
value at the time such repurchase agreement is entered into of not less than
100% of such repurchase obligations.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 3.4(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Change of Control" means the occurrence of any of the following: (a) any
reorganization, merger or consolidation of the Borrower with one or more Persons
where the Borrower is not the surviving entity, other than any such transaction
where (i) the outstanding voting securities of the Borrower are changed into or
exchanged for voting securities of the surviving entity and (ii) the Persons who
were the beneficial owners of the Borrower's voting securities immediately prior
to such transaction beneficially own immediately after such transaction all of
the outstanding voting power of the surviving entity; or (b) Macquarie Bank
Limited or any fund or other entity that is a Subsidiary of (or managed by a
Subsidiary of) Macquarie Bank Limited, shall fail to own, directly or
indirectly, the lesser of (i) at least 51% of
the Equity Securities of the Borrower and (ii) such number of Equity Securities
of the Borrower as is necessary to elect a majority of the board of directors
(or other governing board) of the Borrower.
"Closing Date" means the date of signing of this Agreement.
"Collateral" means all Property of the Borrower and its Subsidiaries now
owned or hereafter acquired, except for those assets that, in the Administrative
Agent's reasonable opinion, have a value that is insignificant in relation to
the cost of perfection, or for which any required consent from an Airport
Authority cannot be obtained after reasonable efforts by the Borrower.
"Collateral Agency Agreement" means the Collateral Agency and Account
Agreement, dated as of December 12, 2005, among the Borrower, the Administrative
Agent and the Collateral Agent.
"Collateral Agent" means The Bank of New York, a New York banking
corporation, in its capacity as collateral agent under the Collateral Agency
Agreement, or any Person appointed to replace such Person with the authority to
exercise and perform the rights and duties of the Collateral Agent under the
Security Documents.
"Commitment" means, with respect to (i) any Term Loan Lender, the
Refinancing Term Loan Commitment and the Trajen Acquisition Term Loan Commitment
of such Term Loan Lender, and (ii) the Revolving Loan Lender, the Revolving Loan
Commitment.
"Commitment Period" means, (i) with respect to the Term Loan Commitments,
the Term Loan Commitment Period; and (ii) with respect to the Revolving Loan
Commitment, the Revolving Loan Commitment Period.
"Concentration Account" means the concentration account (account no.
2000003397925) held by Executive Air Support, Inc. in its name at Wachovia Bank,
N.A.
"Contractual Obligation" of any Person means, any indenture, note, lease,
loan agreement, security, deed of trust, mortgage, security agreement, guaranty,
instrument, contract, agreement or other form of contractual obligation or
undertaking to which such Person is a party or by which such Person or any of
its Property is bound.
"Contribution Agreement" means the Indemnity, Subrogation and Contribution
Agreement, dated as of December 12, 2005, by and among the Borrower, the
Subsidiaries of the Borrower party thereto, and the Administrative Agent.
"Co-Lead Arranger" means Macquarie Bank Limited, in its capacity as
co-lead arranger pursuant to this Agreement.
"Debt Service Coverage Ratio" means, without duplication, for any
Calculation Period the ratio of (a) Net Cash Flow for such Calculation Period to
(b) the sum of all Mandatory Debt Service for such Calculation Period (or such
other sum for the calculation of Mandatory Debt
Service as may be applicable pursuant to the proviso to the definition of
Mandatory Debt Service).
"Debt Service Reserve Account" means the "Debt Service Reserve Account"
established and created in the name of the Collateral Agent pursuant to Section
5.01 of the Collateral Agency Agreement.
"Debt Service Reserve Letter of Credit" means an irrevocable letter of
credit, in form and substance satisfactory to the Administrative Agent, issued
by an Acceptable Issuer in favor of the Collateral Agent as beneficiary for the
benefit of the Secured Parties securing all or any portion of the Debt Service
Reserve Required Balance.
"Debt Service Reserve Required Balance" means, as of the end of each
fiscal quarter of the Borrower, an amount equal to Mandatory Debt Service
projected to become due during the next succeeding six (6) months, as calculated
by the Administrative Agent.
"Default" means any event or occurrence, which, with the passage of time
or the giving of notice or both, would become an Event of Default.
"Disbursement Date" means the Refinancing Term Loan Disbursement Date, the
Trajen Acquisition Term Loan Disbursement Date or any other date upon which a
disbursement of Loans is made upon the satisfaction of the applicable conditions
set forth in Article IV of this Agreement.
"Distribution Account" means the "Distribution Account" established and
created in the name of the Collateral Agent pursuant to Section 5.01 of the
Collateral Agency Agreement.
"Distributions" means dividends (in cash, Property or obligations) on, or
other payments or distributions on account of, or the setting apart of money for
a sinking or other analogous fund for, or the purchase, redemption, retirement
or other acquisition of, any shares of any class of stock of any of the Borrower
or its Subsidiaries or of any warrants, options or other rights to acquire the
same (or to make any payments to any Person, such as "phantom stock" payments,
where the amount is calculated with reference to the fair market or equity value
of any such Loan Party), but excluding dividends payable solely in shares of
common stock of any such Loan Party.
"Dollars" or the sign "$" means United States dollars or other lawful
currency of the United States.
"Drawing" means any drawing made by the beneficiary under any Letter of
Credit.
"Eagle Aviation" means Eagle Aviation Resources, Ltd., a Nevada limited
liability company.
"Eagle Aviation Acquisition" means the consummation of the purchase of all
of the outstanding Equity Securities of Eagle Aviation by the Investor pursuant
to the Eagle Aviation Purchase Agreement (as defined in Schedule A-3 hereto).
"EBITDA" means, for any period, the consolidated Net Income after tax of
the Borrower and its Subsidiaries for such period, plus the sum of the following
items of the Loan Parties determined on a consolidated basis: (a) Interest
Expense for such period, (b) depreciation and amortization for such period, (c)
income tax expense for such period, (d) non-cash expenses allocated to the
Borrower by MIC, (e) payments to employees of the Borrower and its Subsidiaries
under any employee phantom stock ownership plan, and (f) all unusual and
non-recurring fees and expenses relating to the General Aviation Acquisition,
the Eagle Aviation Acquisition and the Trajen Acquisition, in each instance to
the extent deducted in the determination of Net Income after tax and in each
case as determined in accordance with GAAP; provided that such items relating to
GAH, Eagle Aviation and Trajen on a consolidated basis for the twelve-month
period preceding the date of determination shall be included in such calculation
without regard as to whether GAH, Eagle Aviation or Trajen, as applicable, was a
Loan Party during such period.
"EBITDA Test Period" means the period commencing on the Refinancing Term
Loan Disbursement Date through December 31, 2008.
"Eligible Assignee" means (a) a commercial bank organized under the laws
of the United States, or any State thereof; (b) a commercial bank organized
under the laws of any other country; (c) a finance company, insurance company or
other financial institution, or (d) a fund which is engaged in making,
purchasing, holding or otherwise investing in bank loans and similar extensions
of credit in the ordinary course of its business; provided that "Eligible
Assignee" shall not include the Borrower or any of the Borrower's Affiliates or
Subsidiaries.
"Employee Benefit Plan" means any employee benefit plan within the meaning
of section 3(3) of ERISA maintained or contributed to by any Loan Party or any
ERISA Affiliate, other than a Multiemployer Plan.
"Enforcement Action" means any action, whether by judicial proceedings or
otherwise, to enforce any of the rights and remedies granted pursuant to the
Security Documents against the Collateral or the Borrower during the continuance
of an Event of Default.
"Environmental Claims" means any notice, claim or demand (collectively, a
"claim") by any person alleging or asserting liability for investigatory costs,
cleanup or other remedial costs, legal costs, environmental consulting costs,
governmental response costs, damages to natural resources or other property,
personal injuries, fines or penalties related to (i) the presence, or release
into the environment, of any Hazardous Material at any location, whether or not
owned by the person against whom such claim is made, or (ii) any violation of,
or alleged violation of, or liability arising under any Environmental Law. The
term "Environmental Claim" shall include, without limitation, any claim by any
person or Governmental Authority for investigation, enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any
Environmental Law, and any claim by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief
under any Environmental Law.
"Environmental Consultant" means Environmental Strategies Consulting, or
any other firm reasonably acceptable to the Borrower as the Administrative Agent
shall designate.
"Environmental Damages" means all claims, judgments, damages, losses,
penalties, liabilities (including strict liability), costs and expenses,
including costs of investigation, remediation, defense, settlement and
reasonable attorneys' fees and consultants' fees, that are incurred at any time
as a result of the existence of any Hazardous Materials upon, about or beneath
any real property owned by any of the Borrower or its Subsidiaries or migrating
or threatening to migrate to or from any such real property, or arising from any
investigation or proceeding in which any such Loan Party is alleged to be liable
for the release or threatened release of Hazardous Materials or for any
violation of Environmental Laws.
"Environmental Laws" means the Clean Air Act, 42 U.S.C. Section 7401 et
seq.; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.;
the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et
seq.; the Comprehensive Environment Response, Compensation and Liability Act of
1980 (including the Superfund Amendments and Reauthorization Act of 1986,
"CERCLA"), 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, 15
U.S.C. Section 2601 et seq.; the Occupational Safety and Health Act, 29 U.S.C.
Section 651; the Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of 1977, 30 U.S.C.
Section 801 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 300f et
seq.; and all other Governmental Rules relating to environmental, health, safety
and land use matters, including all Governmental Rules pertaining to, or
establishing liability in connection with, the reporting, licensing, permitting,
transportation, storage, disposal, investigation or remediation of emissions,
discharges, releases, or threatened releases of Hazardous Materials into the
air, surface water, groundwater or land, or relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transportation or
handling of Hazardous Materials.
"Equity Securities" of any Person means (a) all common stock, preferred
stock, participations, shares, partnership interests, limited liability company
interests or other equity interests in and of such Person (regardless of how
designated and whether or not voting or non-voting) and (b) all warrants,
options and other rights to acquire any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means (i) after December 26, 2004, any trade or business
(whether or not incorporated) that, together with the Borrower, is treated as a
single employer under Section 414(b) or (c) of the IRC or, solely for purposes
of Section 302 of ERISA and Section 412 of the IRC, is treated as a single
employer under Section 414 of the IRC, and (ii) prior to December 27, 2004, the
Borrower and its Subsidiaries.
"Event of Default" means any of the events specified in Section 7.1 of
this Agreement.
"Event of Loss" means (a) any loss or destruction of, damage to or
casualty relating to all or any part of the Property of the Borrower or any of
its Subsidiaries, including any loss or
destruction of, damage to, or other casualty relating to hangars and ancillary
facilities owned or leased by any such Loan Party and located at the FBOs; or
(b) any condemnation or other taking (including by eminent domain) of all or any
part of such Property.
"Excess Cash Flow" means, as of the last day of each fiscal quarter of the
Borrower, aggregate cash, Cash Equivalents and Permitted Investments of the
Borrower and its Subsidiaries as of the close of business on such date (but
excluding any amounts on deposit in the Debt Service Reserve Account, the Loss
Proceeds Account, the Special Reserve Account or the Distribution Account), less
a prudent amount of reserve funds as reasonably determined by the Borrower to
cover Operating Costs and Mandatory Debt Service which are anticipated to become
due and payable during the following fiscal quarter after taking into account
Operating Revenues which are reasonably anticipated to be received and available
for such payment obligations during such period and less any additional amounts
projected to be required to be deposited to the Debt Service Reserve Account
during such period.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower under any Loan Document, (a) income, franchise or
similar taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, or by any
jurisdiction as a result of a connection between the Administrative Agent, such
Lender or such other recipient of any payment and such jurisdiction (other than
a connection resulting solely from negotiating, executing, delivering or
performing its obligations or receiving a payment under, or enforcing, this
Agreement, any Note or any other Loan Document), or any taxes attributable to a
Lender's failure to comply with Section 3.1(g), (b) any branch profits taxes
imposed by the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 3.6(b) of this Agreement), any withholding tax that is imposed on
amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party to this Agreement (or designates a new lending office) or is attributable
to such Foreign Lender's failure to comply with Section 3.1(e) of this
Agreement, except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 3.1(a) of this Agreement.
"Executive" means Executive Air Support, Inc., a Delaware corporation.
"Executive Air Acquisition" means the consummation of the purchase of all
of the outstanding Equity Securities of Executive Air pursuant to the Executive
Air Purchase Agreement (as defined in Schedule A-3 hereto).
"Executive Intellectual Property Security Agreement" means that certain
Security Agreement (Intellectual Property), dated as of December 12, 2005, among
Executive, the Collateral Agent, and the Administrative Agent.
"Existing Swaps" means the Hedging Transactions entered into by the
Borrower in connection with Indebtedness incurred prior to the Closing Date by
NACH and MANA that are being refinanced by the Term Loans.
"Expansion Capital Expenditures" means expenditures (other than for a
Restoration or repair, replacement and maintenance in the ordinary course of
business) made in connection with the acquisition by the Borrower of any FBOs
after the Closing Date, or the construction of new hangar facilities on the FBO
locations or other major new facilities, including, without limitation, capital
expenditures required to be undertaken under any of the FBO Leases, the
Management Contracts or the Heliport Contract.
"FBO" means fixed base operation.
"FBO Leases" means, collectively, the leases or use agreements with or on
behalf of the relevant Airport Authorities, and other real property leases and
related agreements with the relevant Airport Authorities associated therewith,
relating to the fixed base operations of the Subsidiaries of the Borrower, as
set forth in Schedule A-1.
"Federal Funds Rate" means, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for such next succeeding Business Day, the average of the quotations
for such day for such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System of the United States of America.
"Fee Letters" means certain fee letter agreements entered into between the
Borrower and the Lead Arrangers, the Administrative Agent and the Issuing Bank,
which Fee Letters are the agreements referred to in Section 2.9(d) of this
Agreement.
"Financial Statements" means, with respect to any accounting period for
any Person, statements of income, retained earnings, shareholders' equity or
partners' capital and cash flows of such Person for such period, and a balance
sheet of such Person as of the end of such period, setting forth in each case in
comparative form figures for the corresponding period in the preceding fiscal
year if such period is less than a full fiscal year or, if such period is a full
fiscal year, corresponding figures from the preceding annual audited Financial
Statements, all prepared in reasonable detail and in accordance with GAAP.
"Financing Parties" means, collectively, the Administrative Agent, the
Lenders, individually, and acting by and through the Administrative Agent, the
Issuing Bank and the Hedging Banks.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia.
"Forward Debt Service Coverage Ratio" means, on any Calculation Date, the
projected Debt Service Coverage Ratio for the Calculation Period commencing on
the day immediately following that Calculation Date.
"GAAP" means generally accepted accounting principles in the United States
in effect from time to time.
"GAH" means General Aviation Holdings LLC, a Delaware limited liability
company and the direct parent company of the Newport FBO Two LLC, a Delaware
limited liability company, and Palm Springs FBO Two LLC, a Delaware limited
liability company.
"General Aviation Acquisition" means the consummation of the purchase of
all of the outstanding Equity Securities of GAH by NACH pursuant to the GAH
Purchase Agreement (as defined in Schedule A-3 hereto).
"Governmental Authority" means any nation, state, sovereign, or
government, any federal, regional, state, local or political subdivision and any
other entity exercising executive, legislative, judicial, regulatory or
administrative powers or functions of or pertaining to government.
"Governmental Authorization" means any permit, license, registration,
approval, finding of suitability, authorization, plan, directive, order,
consent, exemption, waiver, consent order or consent decree of or from, or
notice to, action by or filing with, any Governmental Authority, including
siting and operating permits and licenses and any of the foregoing under any
applicable Environmental Law.
"Governmental Charges" means, with respect to any Person, all levies,
assessments, fees, claims or other charges imposed by any Governmental Authority
upon such Person or any of its Property or otherwise payable by such Person.
"Governmental Rule" means any law, rule, regulation, ordinance, order,
code interpretation, judgment, decree, directive, Governmental Authorization
guidelines, policy or similar form of decision of any Governmental Authority.
"Guarantee Obligations" means, for any Person, without duplication, any
financial obligation, contingent or otherwise, of such Person guaranteeing or
otherwise supporting any Indebtedness or other obligation for borrowed money of
any other Person in any manner, whether directly or indirectly, and including
any obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (ii) to purchase property, securities or
services for the purposes of assuring the owner of such Indebtedness of the
payment of such Indebtedness, (iii) to maintain working capital, equity capital,
available cash or other financial statement condition or the primary obligor so
as to enable the primary obligor to pay such Indebtedness, (iv) to provide
equity capital under or in respect of equity subscription arrangements to pay
such Indebtedness (to the extent that such obligation to provide equity capital
does not otherwise constitute Indebtedness), or (v) to perform, or arrange for
the performance of, any non-monetary
obligations or non-funded debt payment obligations of the primary obligor. The
amount of any Guarantee Obligation shall be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made or, if not stated or if indeterminable, the maximum liability
in respect thereof.
"Guarantor" means each now-existing or hereafter acquired or created
direct or indirect Subsidiary of the Borrower.
"Hazardous Materials" means all pollutants, contaminants and other
materials, substances and wastes which are hazardous, toxic, caustic, harmful or
dangerous to human health or the environment, including petroleum and petroleum
products and byproducts, radioactive materials, asbestos, polychlorinated
biphenyls and all materials, substances and wastes which are classified or
regulated as "hazardous," "toxic" or similar descriptions under any
Environmental Law; provided that for purposes of this Agreement, "Hazardous
Materials" shall not include commercially reasonable amounts of such materials
used in the ordinary course of the Loan Parties' businesses in accordance with
applicable Environmental Laws.
"Hedging Agreement" means any agreement with respect to any swap, cap,
collar, hedge, forward, future or derivative transaction or option or similar
agreement involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions.
"Hedging Banks" means The Governor and Company of the Bank of Ireland,
Bayerische Landesbank and Macquarie Bank Limited, and their respective
successors and assigns, as counterparties under the Hedging Agreements entered
into pursuant to Section 4.1(e) and Section 4.3(g) of this Agreement.
"Hedging Obligations" means, collectively, the payment of (a) all
scheduled amounts payable to the Hedging Banks by the Borrower, as the
fixed-rate payor, under any Hedging Agreements (including interest accruing
after the date of any filing by the Borrower of any petition in bankruptcy or
the commencement of any bankruptcy, insolvency or similar proceeding with
respect to the Borrower), net of all scheduled amounts payable to the Borrower
by such Hedging Banks as floating-rate payor, and (b) all other indebtedness,
fees, indemnities and other amounts payable by the Borrower to the Hedging Banks
under such Hedging Agreements; provided that Hedging Obligations shall not
include Hedging Termination Obligations.
"Hedging Termination Obligations" means the aggregate amount of (i)
Hedging Obligations payable to the Hedging Banks by the Borrower, as the fixed
rate payor, upon the early unwind of all or a portion of any Hedging Agreement,
net of all amounts payable to the Borrower by such Hedging Banks, as
floating-rate payor thereunder, plus (ii) any penalty payments or other payments
in the form of unwind fees payable in connection with an early unwind.
"Hedging Transaction" means any interest rate protection agreement,
interest rate swap transaction, interest rate "cap" or "collar" transaction,
interest rate future, interest rate option or hedging transaction.
"Heliport Contract" means the Operations Agreement, dated October 17,
1997, between the New York City Economic Development Corporation and Amports, as
listed on Schedule A-2 of this Agreement.
"Indebtedness" of any Person means (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person to pay the deferred purchase price of property or services, (iv) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (v)
all Capital Leases of such Person, (vi) all obligations, contingent or
otherwise, of such Person under acceptances issued or created for the account of
such Person, (vii) all unconditional obligations of such Person to purchase,
redeem, retire, defease or otherwise acquire for value any capital stock or
other equity interests of such Person or any warrants, rights or options to
acquire such capital stock or other equity interests, (viii) all Hedging
Obligations, (ix) all obligations of such Person, other than trade payables
incurred in the ordinary course of business, upon which interest charges are
customarily paid, (x) the undrawn face amount of, and unpaid reimbursement
obligations in respect of, all letters of credit issued for the account of such
Person, (xi) all Guarantee Obligations of such Person in respect of obligations
of other Persons of the types referred to in clauses (i) through (x) above; and
(xii) all Indebtedness of the type referred to in clauses (i) through (xi) above
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including
accounts and contracts rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent such
Indebtedness is expressly non-recourse to such Person.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning specified in Section 10.3(b) of this
Agreement.
"Initial Lenders" means, collectively, the Lead Arrangers and the Co-Lead
Arranger.
"Insurance Consultant" means Moore-McNeil, LLC, or any other firm
reasonably acceptable to the Borrower as the Administrative Agent shall
designate.
"Interest Expense" means, for any period, the sum, for the Borrower and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), all interest, fees, charges and related expenses payable
during such period to any Person in connection with Indebtedness or the deferred
purchase price of assets that is treated as interest in accordance with
GAAP, including, without limitation, the portion of rent actually paid during
such period under Capital Leases that should be treated as interest in
accordance with GAAP, and the net amounts payable (or minus the net amounts
receivable) under Hedging Agreements accrued during such period (whether or not
actually paid or received during such period).
"Interest Payment Date" means (i) with respect to any LIBOR Revolving Loan
or Term Loan, the last day of each Interest Period applicable to such Loan;
provided that with respect to Loans with a six-month Interest Period, the date
that falls three months after the beginning of such Interest Period shall also
be an Interest Payment Date; and (ii) with respect to any Base Rate Loan, the
last day of each March, June, September and December.
"Interest Period" means, with respect to the Term Loan, (a) initially the
period commencing on the date of the Borrowing of such Loan and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter and (b) thereafter, each period commencing on the last day
of the preceding Interest Period and ending the numerically corresponding day in
the calendar month that is one, two, three or six months thereafter, in each
case as selected by the Borrower or otherwise determined in accordance with
Section 2.4 of this Agreement; provided that:
(x) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Business Day;
(y) any Interest Period which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period; and
(z) for any Interest Period which begins on the last Business Day of
a calendar quarter, the Borrower may elect to have the three-month interest
period end on the last Business day of the next succeeding quarter.
"Inventory" means, at any time, all of the goods, merchandise and other
personal property of the Borrower and its Subsidiaries, wherever located, to be
furnished under any contract of service or held for sale or lease, all raw
materials, work in progress, finished goods and materials and supplies of any
kind, nature or description which are or might be used or consumed in such Loan
Parties' business or used in connection with the manufacture, selling or
finishing of such goods, merchandise and other personal property, net of any
charges or deductions for any goods, merchandise and other personal property
that is obsolete or unmerchantable, as determined by reference to the most
recent monthly operating report of the Borrower and its Subsidiaries.
"Investment" of any Person means any loan or advance of funds by such
Person to any other Person (other than advances to employees of such Person for
moving, travel expenses, and other business expenses drawing accounts and
similar expenditures in the ordinary course of business consistent with past
practice), any purchase or other acquisition of any Equity Securities
or Indebtedness of any other Person, any capital contribution by such Person to
or any other investment by such Person in any other Person (including any
Guarantee Obligations of such Person and any Guarantee Obligations of such
Person of the types described in clause (x) of the definition of "Indebtedness"
on behalf of any other Person); provided, however, that Investments shall not
include (a) accounts receivable or other indebtedness owed by customers of such
Person which are current assets and arose from sales of inventory in the
ordinary course of such Person's business consistent with past practice, or (b)
prepaid expenses of such Person incurred and prepaid in the ordinary course of
business consistent with past practice.
"Investor" means Macquarie FBO Holdings LLC, a Delaware limited liability
company, and its successors or assigns.
"IRC" means the Internal Revenue Code of 1986.
"Issuing Bank" means Mizuho Corporate Bank, Ltd., and any permitted
successor thereto.
"L/C Issuer Event" means, with respect to any issuer of a Debt Service
Reserve Letter of Credit for any portion of the Debt Service Reserve Required
Balance, any determination by a Nationally Recognized Rating Agency that results
in such issuer ceasing to be an Acceptable Issuer.
"Lead Arrangers" means, collectively, The Governor and Company of the Bank
of Ireland, Mizuho Corporate Bank, Ltd., and Bayerische Landesbank, New York
Branch, in their capacity as the lead arrangers pursuant to this Agreement.
"Legal Requirement" means, as to any Person (a) the articles or
certificate of incorporation or articles of organization and by-laws,
partnership agreement, operating agreement or other organizational or governing
documents of such Person, (b) any Governmental Rule applicable to such Person,
(c) any Governmental Authorization granted by any Governmental Authority to or
for the benefit of such Person or (d) any judgment, decision or determination of
any Governmental Authority or arbitrator, in each case applicable to or binding
upon such Person or any of its Property or to which such Person or any of its
Property is subject.
"Lenders" has the meaning set forth in the preamble of this Agreement.
"Letter of Credit" means any letter of credit issued pursuant to Section
2.13 of this Agreement.
"Letter of Credit Expiration Date" means the day that is one (1) Business
Day prior to the Maturity Date.
"Letter of Credit Facility" means the facility made available for the
benefit of the Borrower or any Subsidiary of the Borrower under Section 2.13 of
this Agreement in relation to the Letters of Credit.
"Letter of Credit Obligations" means, as at any date of determination, the
aggregate undrawn face amount of all outstanding Letters of Credit.
"Letter of Credit Sublimit" means an amount equal to the Total Revolving
Loan Commitment. The Letter of Credit Sublimit is part of, and not in addition
to, the Total Revolving Loan Commitment.
"Letter of Credit Usage" means, as of any date, the aggregate undrawn face
amount of the outstanding Letters of Credit plus the aggregate amount of all
Drawings under the Letters of Credit honored by the Issuing Bank and either not
reimbursed to the Issuing Bank by the Borrower or converted into Loans.
"Leverage Ratio" means, as of each date of determination, the ratio of (a)
Total Funded Debt as of the last day of the fiscal quarter then ended to (b)
EBITDA for the twelve month period ending on such date.
"Leverage Ratio Test Period" means the period commencing on the date that
is the third (3rd) anniversary of the Refinancing Term Loan Disbursement Date
through the date on which the Loans have been paid in full.
"LIBOR" means, for any Interest Period with respect to a Loan:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate Screen that displays an average British Bankers Association
Interest Settlement Rate (such page currently being page number 3750) for
deposits in Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two (2) Business Days prior to the
first day of such Interest Period; provided that in the case of any
Interest Period that has a term which is not equivalent to any of the
terms for which rates appear on such page, the Administrative Agent shall
determine a rate using the linear interpolation of the rates appearing on
such page for the next shorter and next longer time periods; or
(b) in the event the rate referenced in the preceding subsection (a)
does not appear on such page or service or such page or service shall
cease to be available, the rate per annum (carried out to the fifth
decimal place) equal to the rate determined by Administrative Agent (after
consultation with the Borrower and the Lenders) to be the offered rate on
such other page or other service that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for delivery
on the first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London time)
two (2) Business Days prior to the first day of such Interest Period;
provided that in the case of any Interest Period that has a term which is
not equivalent to any of the terms for which rates appear on such page,
the Administrative Agent shall determine a rate using the linear
interpolation of the rates appearing on such page for the next shorter and
next longer time periods; or
(c) in the event the rates referenced in the preceding subsections
(a) and (b) are not available (including by reason of either such page or
service not displaying a rate for a term equivalent to the Interest Period
selected by the Borrower), the rate per annum determined by the
Administrative Agent as the rate of interest at which dollar deposits (for
delivery on the first day of such Interest Period) in same day funds in
the approximate amount of the applicable Loan and with a term equivalent
to such Interest Period would be offered by its London Branch to major
banks in the offshore dollar market at their request at approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of
such Interest Period.
"LIBOR Loan" means any Loan with respect to which the applicable rate of
interest is based upon LIBOR.
"LIBOR Revolving Loans" means, at any time, a Revolving Loan bearing
interest as provided in Section 2.3(a) of this Agreement.
"Lien" means any mortgage, pledge, hypothecation, assignment, mandatory
deposit arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement of any kind or nature whatsoever,
including, without limitation, any sale-leaseback arrangement, any conditional
sale or other title retention agreement, any financing lease having
substantially the same effect as any of the foregoing, and the filing of any
financing statement or similar instrument under the Uniform Commercial Code or
comparable Legal Requirement.
"Loan" means any of the Loans.
"Loan Documents" means this Agreement, any Notes, each Subsidiary Guaranty
and any joinder agreements with respect thereto, the Security Documents and any
joinder agreements with respect thereto, each Letter of Credit, the Hedging
Agreements entered into between the Borrower and a Hedging Bank for a Hedging
Transaction in accordance with Section 6.1(l) of this Agreement, each fee
agreement referred to in Section 2.9 of this Agreement, all other documents,
instruments and agreements entered into with the Administrative Agent or any
Lender pursuant to Section 4.1 of this Agreement, and all other documents,
instruments and agreements entered into by any Loan Party with the
Administrative Agent or any Lender in connection with this Agreement or any
other Loan Document on or after the Closing Date.
"Loan Parties" means, collectively, the Borrower, the Investor and the
Guarantors (severally, a "Loan Party").
"Loans" means, collectively, the Term Loans and the Revolving Loans.
"Lock-up Event" means the failure to achieve the Applicable Minimum
EBITDA.
"Lock-up Period" means, with respect to any Lock-up Event, the period
commencing on the Calculation Date as of which such Lock-up Event has occurred
to and including the Calculation Date occurring at the end of the following two
(2) succeeding fiscal quarters.
"Loss Proceeds Account" means the "Loss Proceeds Account" established and
created in the name of the Collateral Agent pursuant to Section 5.01 of the
Collateral Agency Agreement.
"MANA" means Macquarie Airports North America Inc., a Delaware
corporation.
"Management Contracts" means, collectively, the management contracts with
the relevant Airport Authorities, as set forth in Schedule A-2.
"Mandatory Debt Service" means, for any Calculation Period, the sum of the
following amounts payable during such period: (a) all interest on the Loans, (c)
all commitment and agency fees payable by the Borrower, and (c) any periodic
scheduled payments constituting Hedging Obligations payable by the Borrower (or
less amounts payable to the Borrower); provided that for purposes of calculating
the Backward Debt Service Coverage Ratio for any period of four fiscal quarters
of the Borrower ending on any date specified below, Mandatory Debt Service shall
be calculated as follows:
(i) as of the end of the first fiscal quarter of the Borrower ending
after the Refinancing Term Loan Disbursement Date (the "Initial Fiscal
Quarter"), by multiplying (A) Mandatory Debt Service for the Initial
Fiscal Quarter (but including only one-fourth of the annual agency fee
paid to the Administrative Agent on the Refinancing Term Loan Disbursement
Date) multiplied by a fraction the numerator of which is the number of
days in the Initial Fiscal Quarter and the denominator of which is the
number of days from the Refinancing Term Loan Disbursement Date through
the last day of the Initial Fiscal Quarter (such sum, the "Adjusted
Mandatory Debt Service for the Initial Fiscal Quarter"), by (B) four;
(ii) as of the end of the next succeeding fiscal quarter of the
Borrower (the "Second Fiscal Quarter"), by multiplying (A) the sum of (1)
the Adjusted Mandatory Debt Service for the Initial Fiscal Quarter, plus
(2) Mandatory Debt Service for the Second Fiscal Quarter, by (B) two;
(iii) as of the end of the next succeeding fiscal quarter of the
Borrower (the "Third Fiscal Quarter"), by multiplying (A) the sum of (1)
the Adjusted Mandatory Debt Service for the Initial Fiscal Quarter, plus
(2) Mandatory Debt Service for the Second Fiscal Quarter, plus (3)
Mandatory Debt Service for the Third Fiscal Quarter, by (B) four-thirds;
and
(iv) as of the end of the next succeeding fiscal quarter of the
Borrower (the "Fourth Fiscal Quarter"), Mandatory Debt Service for the
four fiscal quarters then ended shall be the sum of (A) the Adjusted
Mandatory Debt Service for the Initial Fiscal Quarter, plus (B) Mandatory
Debt Service for the Second Fiscal Quarter, plus (C) Mandatory Debt
Service for the Third Fiscal Quarter, plus (D) Mandatory Debt Service for
the Fourth Fiscal Quarter.
"Margin Stock" has the meaning given to that term in Regulation U issued
by the Federal Reserve Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, financial condition or liabilities of the Borrower
and its Subsidiaries, taken as a whole; (b) the ability of the Borrower and its
Subsidiaries taken as a whole to pay or perform any of their material
obligations under any of the Loan Documents; (c) the rights and remedies of the
Administrative Agent or any Lender under this Agreement, the other Loan
Documents or any related document, instrument or agreement; (d) the value of the
Collateral taken as a whole, the Administrative Agent's or any Lender's security
interest in the Collateral or the perfection or priority of such security
interests, or (e) the validity of any of the Loan Documents.
"Material Contract Right" means any right or interest of the Borrower or
any of its Subsidiaries under a Material Contract.
"Material Contracts" means, collectively, each of the material agreements
and contracts pertaining to the Businesses set forth in Schedule A-3, including,
without limitation, each of the FBO Leases, each of the Management Contracts,
the Heliport Contract and each of the Acquisition Documents; provided that the
FBO Leases for the FBO operations at New Orleans Lakefront Airport listed as
items 15 and 16 on Schedule A-1 shall be deemed not to be Material Contracts.
"Material Documents" has the meaning specified in Section 6.2(m) of this
Agreement.
"Material Loss" means any Event of Loss the Restoration of which is
reasonably estimated by the Borrower to cost more than $500,000.
"Maturity Date" means the date that is five (5) years after the Closing
Date (as defined in the Original Loan Agreement); provided that if such date is
a day other than a Business Day, the Maturity Date shall be the immediately
preceding Business Day.
"Maximum Release Percentage" means 5%.
"MIC" means Macquarie Infrastructure Company Inc., a Delaware corporation.
"Model Auditor" means Mercer Finance and Risk Consulting a division of
Mercer Human Resource Consulting Pty Ltd. or any other firm reasonably
acceptable to the Borrower as the Administrative Agent shall designate.
"Monthly Funds Transfer Date" means the last Business Day of each calendar
month.
"Moody's" means Moody's Investor Service, Inc. and any successor thereto
which is a nationally recognized rating agency.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA and subject to Title IV of ERISA to which a Loan Party or
ERISA Affiliate contributes or has an obligation to contribute.
"NACH" means North America Capital Holding Company, a Delaware company.
"Nationally Recognized Rating Agency" means Standard & Poor's Rating
Group, Moody's Investors Services, Inc., Fitch or another national debt rating
agency approved by the Administrative Agent.
"Net Asset Disposition Proceeds" means, with respect to any sale or series
of related sales of any Property by any of the Borrower or its Subsidiaries
(including the direct or indirect sale of any stock or other Equity Securities
of any such Loan Party other than the Borrower), other than any sale permitted
by Section 6.2(c) of this Agreement, the aggregate consideration received by
such Person from such sale less the sum of (a) the actual amount of the
reasonable fees and commissions payable to Persons other than such Person or any
Affiliate of such Person and (b) the reasonable legal expenses and other costs
and expenses, including taxes payable, directly related to such sale that are to
be paid by such Person.
"Net Cash Flow" means, in respect of any period, (a) aggregate Operating
Revenues received during such period, plus (b) aggregate equity contributions
received by the Borrower from the Investor during such period not used to pay
for Expansion Capital Expenditures or for any unusual and non-recurring fees and
expenses relating to the integration of businesses resulting from the General
Aviation Acquisition, the Eagle Aviation Acquisition and the Trajen Acquisition,
in each instance to the extent deducted in the determination of Net Income after
tax and in each case as determined in accordance with GAAP, less (c) the
Operating Costs paid during such period.
"Net Condemnation Proceeds" means an amount equal to: (a) any cash
payments or proceeds received by a Loan Party as a result of any condemnation or
other taking or temporary or permanent requisition of any Property, any interest
therein or right appurtenant thereto, or any change of grade affecting any
Property, as the result of the exercise of any right of condemnation or eminent
domain by a Governmental Authority (including a transfer to a Governmental
Authority in lieu or anticipation of a condemnation), minus (b) (i) any actual
and reasonable costs incurred by a Loan Party in connection with any such
condemnation or taking (including reasonable fees and expenses of counsel), and
(ii) provisions for all taxes payable as a result of such condemnation.
"Net Debt Proceeds" means, with respect to any issuance or incurrence of
any Indebtedness by any of the Borrower or its Subsidiaries, the aggregate
consideration actually received by such Person from such sale or issuance less
the sum of (a) the actual amount of the reasonable fees and commissions payable
to Persons other than such Person or any Affiliate of such Person and (b) the
reasonable legal expenses and other reasonable costs and expenses directly
related to such issuance or incurrence that are to be paid by such Person.
"Net Equity Proceeds" means, with respect to any issuance of Equity
Securities by any of the Borrower or its Subsidiaries, the aggregate
consideration actually received by such Person from such issuance less the sum
of (a) the actual amount of the reasonable fees and commissions payable to
Persons other than such Person or any Affiliate of such Person and (b) the
reasonable legal expenses and other reasonable costs and expenses directly
related to such issuance that are to be paid by such Person; provided that Net
Equity Proceeds shall not include any of the following: (i) any capital
contribution from any Loan Party in the form of Equity Securities or
any issuance or sale of Equity Securities by any Subsidiary of the Borrower to
the Borrower or any of the Borrower's Subsidiaries; (ii) any sale or issuance by
any Loan Party to directors, officers or employees of such Loan Party or any
other Loan Party of Equity Securities in the form of warrants, options or
similar rights to acquire any other Equity Securities of such Loan Party, or any
sale or issuance of Equity Securities upon the exercise of any such warrants,
options or similar rights; (iii) the issuance by any Loan Party of Equity
Securities in connection with the formation of Subsidiaries pursuant to
transactions otherwise permitted pursuant to Sections 6.2(d) and 6.2(e) of this
Agreement; and (iv) the issuance of Equity Securities by the Borrower to the
Investor.
"Net Income" means, with respect to any fiscal period, the net income of
the Borrower and its Subsidiaries determined on a consolidated basis in
accordance with GAAP, consistently applied.
"Net Insurance Proceeds" means an amount equal to: (a) any cash payments
or proceeds received by any of the Borrower or its Subsidiaries under any
casualty insurance policy in respect of a covered loss thereunder with respect
to any Property, minus (b)(i) any actual costs incurred by such Loan Party in
connection with the adjustment or settlement of any claims of such Loan Party in
respect thereof (including reasonable fees and expenses of counsel), and (ii)
provisions for all taxes payable as a result of such event.
"Non-Eligible FBO" means any of the FBOs located at the following
airports: (i) Teterboro Airport in New Jersey; (ii) Chicago Midway Airport in
Illinois; (iii) McCarran International Airport in Nevada; (iv) Philadelphia
International Airport in Pennsylvania; (v) John Wayne Airport in Orange County,
California; (vi) Louisville International Airport in Kentucky; (vii) Pittsburgh
International Airport in Pennsylvania; (viii) Republic Airport in New York, (ix)
Houston Hobby Airport in Texas; (x) Palm Springs Airport in California, (xi)
Aspen/Pitken County Airport in Colorado, (xii) Kelly Air Force Base Airport in
Texas, (xiii) Austin-Bergtrom International Airport in Texas, (xiv) Palwaukee
Municipal Airport in Illinois and (xv) Wiley Post Airport in Oklahoma.
"Note" means a promissory note issued by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit C to
this Agreement.
"Notice of Revolving Loan Conversion" means a request by the Borrower for
a conversion of a Revolving Loan Borrowing in accordance with Section 2.2(c) of
this Agreement.
"Obligations" means all obligations, liabilities and indebtedness of every
nature of any Loan Party from time to time owing to any Secured Party under any
Loan Document including, without limitation, (i) all principal, interest, and
fees, (ii) all scheduled payments due to the Hedging Banks under the Hedging
Obligations, (iii) any amounts (including, without limitation, insurance
premiums, licensing fees, recording and filing fees, and Taxes) the Secured
Parties expend on behalf of the Borrower because the Borrower fails to make any
such payment when required under the terms of any Transaction Document, and (iv)
all amounts required to be paid under any indemnification, cost reimbursement or
similar provision.
"Operating Accounts" means the operating accounts described on Schedule
5.26 to this Agreement, and any additional or replacement accounts from time to
time established and maintained by any of the Borrower or its Subsidiaries.
"Operating Costs" means, for any period, all actual cash costs incurred
(including any capital expenditures made in connection with the Businesses
except as expressly excluded below and any Taxes and cash provisions for any
such Taxes) and paid by the Borrower and its Subsidiaries (determined on a
consolidated basis by excluding any such payments from any of the Borrower or
its Subsidiaries to another of the Borrower or any of its Subsidiaries) in
connection with the operation of their respective businesses, but excluding (a)
all Expansion Capital Expenditures funded with funds transferred from the
Distribution Account, financed by Indebtedness permitted in accordance with
Section 6.2(a)(iv) of this Agreement or funded by equity contributions made by
the Investor, (b) all unusual and non-recurring fees and expenses, funded with
funds transferred from the Distribution Account, financed by Indebtedness
permitted in accordance with Section 6.2(a)(iv) of this Agreement or funded by
equity contributions made by the Investor, relating to the integration of
businesses resulting from the General Aviation Acquisition, the Eagle Aviation
Acquisition and the Trajen Acquisition, in each instance to the extent deducted
in the determination of Net Income after tax and in each case as determined in
accordance with GAAP, (c) all noncash charges, including, but not limited to,
depreciation or obsolescence charges or reserves therefor, amortization of
intangibles or other bookkeeping entries of a similar nature, (d) all payments
of principal, of interest or of fees upon the Loans (whether or not constituting
Mandatory Debt Service), (e) Investments, (f) Distributions, (g) all costs paid
by Net Insurance Proceeds or other insurance proceeds (other than proceeds of
any business interruption or anticipated loss in revenues insurance), and (h)
payments to employees of the Borrower and its Subsidiaries under any employee
phantom stock ownership plan; provided that such items relating to the FBO
businesses of GAH, Eagle Aviation or Trajen on a consolidated basis for the
twelve-month period preceding the date of determination shall be included in
such calculation without regard to whether GAH, Eagle Aviation or Trajen, as the
case may be, was a Loan Party during such period.
"Operating Revenues" means, for any period (without duplication), all
income and other amounts received by or on behalf of the Borrower and its
Subsidiaries (determined on a consolidated basis by excluding any such amounts
received by any of the Borrower or its Subsidiaries to another of the Borrower
or any of its Subsidiaries) during such period; provided that Operating Revenues
shall not include (i) Net Condemnation Proceeds, (ii) Net Debt Proceeds
(including proceeds of the Loans), (iii) Net Equity Proceeds (without regard to
the proviso to the definition thereof), and (iv) Net Insurance Proceeds or other
insurance proceeds (other than proceeds of any business interruption or
anticipated loss in revenue insurance); provided that such items relating to the
FBO businesses of GAH, Eagle Aviation or Trajen on a consolidated basis for the
twelve-month period preceding the date of determination shall be included in
such calculation without regard to whether GAH, Eagle Aviation or Trajen, as the
case may be, was a Loan Party during such period.
"Organizational Documents" means, with respect to a Loan Party, the
certificate of incorporation, articles of incorporation, bylaws, certificate of
limited partnership, articles of organization, operating agreement or comparable
document of such Loan Party.
"Original Loan Agreement" has the meaning given to that term in the
Introduction to this Agreement.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under this Agreement or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement.
"Outstanding Amount" means, with respect to any Letter of Credit, the
aggregate face amount of such Letter of Credit, as reduced by each Drawing made
by the beneficiary thereof.
"Outstanding Exposure" means, at any time, the sum of (a) the aggregate
then outstanding principal amount of the Loans and Letter of Credit Usage and
(b) following any termination of the Hedging Agreements upon the acceleration of
the Loans in accordance with Section 7.2(a) of this Agreement or the
commencement of any Bankruptcy Proceeding by or against the Borrower, (i) any
Hedging Termination Obligations then due to the Hedging Banks or (ii) as to any
Hedging Bank that is prevented from terminating a Hedging Agreement by the
automatic stay or any other stay in any Bankruptcy Proceeding by or against the
Borrower, the amount of any Hedging Termination Obligations that would have been
then due to such Hedging Bank if such Hedging Agreement had been terminated as
of the commencement of such Bankruptcy Proceeding; provided, that for the
purpose only of determining the voting or approval rights of the Lenders under
this Agreement and the other Loan Documents or in the context of the definition
of "Required Lenders", if the Outstanding Exposure of Macquarie Bank Limited and
its Affiliates as so calculated at any time exceeds 30% of the aggregate
Outstanding Exposure, only that portion of such amounts held by Macquarie Bank
Limited and its Affiliates as equals 30% of the aggregate Outstanding Exposure
shall be included in such calculation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Indebtedness" has the meaning given to that term in Section
6.2(a) of this Agreement.
"Permitted Investments" means (i) marketable direct obligations of the
United States of America; (ii) marketable obligations directly and fully
guaranteed as to interest and principal by the United States of America; (iii)
demand deposits with the Collateral Agent, and time deposits, certificates of
deposit and banker's acceptances issued by (x) the Collateral Agent, so long as
its long-term debt securities are rated "A" or better by S&P and "A2" or better
by Moody's, or (y) any member bank of the Federal Reserve System which is
organized under the laws of the United States of America or any political
subdivision thereof or under the laws of Canada, Switzerland or any country
which is a member of the European Union having a combined capital and surplus of
at least $500 million and having long-term unsecured debt securities rated "A"
or better by S&P and "A2" or better by Moody's; (iv) commercial paper or
tax-exempt obligations given the highest rating by S&P and Moody's; (v)
obligations of the Collateral Agent meeting the requirements of clause (iii)
above or any other bank meeting the requirements of clause (iii) above, in
respect of the repurchase of obligations of the type as described in clauses (i)
and (ii) above, provided that such repurchase obligations shall be fully secured
by obligations of the type described in said clauses (i) and (ii) above, and the
possession of such obligations shall be
transferred to, and segregated from other obligations owned by, the Collateral
Agent or such other bank; (vi) a money market fund or a qualified investment
fund (including any such fund for which the Collateral Agent or any Affiliate
thereof acts as an advisor or a manager) given one of the two highest long-term
ratings available from S&P and Moody's, including any fund for which the
Collateral Agent or an Affiliate of the Collateral Agent serves as an investment
advisor, administrator, shareholder servicing agent, custodian or subcustodian,
notwithstanding that (A) the Collateral Agent or an Affiliate of the Collateral
Agent charges and collects fees and expenses from such funds for services
rendered (provided that such charges, fees and expenses are on terms consistent
with terms negotiated at arm's length) and (B) the Collateral Agent charges and
collects fees and expenses for services rendered pursuant to the Collateral
Agency Agreement; and (vii) eurodollar certificates of deposit issued by the
Collateral Agent meeting the requirements of clause (iii) above or any other
bank meeting the requirements of clause (iii) above. In no event shall any cash
in the Accounts be invested in any obligation, certificate of deposit,
acceptance, commercial paper or instrument which by its terms matures more than
ninety (90) days after the date of investment, unless the Collateral Agent or a
bank meeting the requirements of clause (iii) above shall have agreed to
repurchase such obligation, certificate of deposit, acceptance, commercial paper
or instrument at its purchase price plus earned interest within no more than
ninety (90) days after its purchase. With respect to any rating requirement set
forth above, if the relevant issuer is rated by either S&P or Moody's, but not
both, then only the rating of such rating agency shall be utilized for the
purpose of this definition.
"Permitted Liens" has the meaning given to that term in Section 6.2(b) of
this Agreement.
"Permitted Subordinated Debt" means unsecured Indebtedness of any of the
Borrower or its Subsidiaries in the form of loans to such Loan Party from an
Investor or an Affiliate thereof, so long as (a) such obligations of such Loan
Party are (i) unsecured and do not permit the holder of such Indebtedness to
accelerate the principal amount thereof upon default, (ii) evidenced by an
instrument or instruments subordinated to the rights of the Lenders containing
provisions substantially in the form of Exhibit E to this Agreement, and (iii)
payable solely from amounts distributable to the Borrower from the Distribution
Account pursuant to Section 5.05 of the Collateral Agency Agreement, and (b) the
Borrower or such other Loan Party retains the sole right to take any action, or
refrain from taking any action, with respect to the business, affairs and
properties of such Loan Party; provided that the agreement between such Loan
Party and the holder of such Indebtedness may provide that such Loan Party will
not, without the consent of such holder, enter into any agreement that affects
the right of such holder to receive payments in accordance with the foregoing
clause (iii).
"Person" means any individual, corporation, cooperative, partnership,
joint venture, association, joint-stock company, limited liability company,
other entity, trust, unincorporated organization or Governmental Authority or
other entity of whatever nature.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the IRC
or Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreements" means, collectively, (a) the share pledge agreement
dated as of December 12, 2005 by the Investor in favor of the Collateral Agent
granting a first-priority security interest in the Equity Securities of the
Borrower, (b) each pledge agreement delivered by the Borrower or any Subsidiary
of the Borrower in favor of the Collateral Agent granting a security interest in
the Equity Securities of the Subsidiaries of the Borrower as a condition to the
Borrowing of Loans, (c) any pledge agreement executed and delivered after the
Closing Date by the Investor in favor of the Collateral Agent granting a
first-priority security interest in the Equity Securities of the Borrower, and
(d) any pledge agreement executed and delivered after the Closing Date by the
Borrower or any Subsidiary of the Borrower in favor of the Collateral Agent
granting a security interest in the Equity Securities of any additional or
substituted Subsidiaries of the Borrower in accordance with Section 6.1(k) of
this Agreement.
"Prime Rate" means (i) for purposes of calculating the interest rate with
respect to a Base Rate Revolving Loan, the rate of interest per annum publicly
announced from time to time by the Revolving Loan Lender as its "prime rate" or
"base rate" in effect on such day at its principal office in New York; and (ii)
for any other purpose, the rate of interest per annum publicly announced from
time to time by the Administrative Agent as its "prime rate" or "base rate" in
effect on such day at its principal office in New York City. Any change in the
Prime Rate announced by the Administrative Agent shall take effect on the day
specified in the public announcement of such change.
"Proceeds" means "proceeds" as such term is defined in the UCC or under
other relevant law and, in any event, shall include, but shall not be limited
to, (i) any and all proceeds of, or amounts (in whatsoever form, whether cash,
securities, property or other assets) received under or with respect to, any
insurance, indemnity, warranty or guaranty payable to the Borrower from time to
time, and claims for insurance, indemnity, warranty or guaranty effected or held
for the benefit of the Borrower, in each case with respect to any of the
Collateral, (ii) any and all payments (in any form whatsoever, whether cash,
securities, property or other assets) made or due and payable to the Borrower
from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral by any
Governmental Authority (or any person acting under color of Governmental
Authority), and (iii) any and all other amounts (in any form whatsoever, whether
cash, securities, property or other assets) from time to time paid or payable
under or in connection with any of the Collateral (whether or not in connection
with the sale, lease or other disposition of the Collateral).
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Proportional EBITDA Contribution" means, with respect to any prepayment
of the Loans as permitted by the last paragraph of Section 7.1 of this
Agreement, a percentage equal to the highest of (i) the projected EBITDA of the
affected FBO(s) set forth in the Base Case Projections for the fiscal year
following such prepayment divided by the aggregate projected EBITDA of all FBOs
set forth in the Base Case Projections for such fiscal year; (ii) the EBITDA of
the affected FBO(s) for the fiscal year immediately preceding such prepayment,
divided by the aggregate EBITDA of all FBOs for such fiscal year; and (iii) the
average EBITDA of
the affected FBO(s) for the three successive fiscal years immediately preceding
such prepayment, divided by the average aggregate EBITDA of all FBOs for such
three-year period.
"Pro Rata Share" means, with respect to each Term Loan Lender, at any
time, a fraction (expressed as a percentage), the numerator of which is the
amount of the Term Loan Commitment of such Lender at such time, and the
denominator of which is the amount of the aggregate Term Loan Commitments, of
all Term Loan Lenders, at such time. The initial Pro Rata Share of each Term
Loan Lender as to its Term Loan Commitment is set forth opposite the name of
such Lender on Schedule 2.1 to this Agreement or Assignment and Assumption
pursuant to which such Lender becomes a party to this Agreement, as applicable.
"Prudent Industry Practice" means, at a particular time, any of the
practices, methods, standards and acts (including the practices, methods and
acts engaged in or approved by a significant portion of the relevant aviation
services industry relating to the FBO Leases, Managements Contracts or the
Heliport Contract, as applicable, in the United States) that, at a particular
time, in the exercise of reasonable judgment in light of the facts known at the
time a decision was made, could reasonably have been expected to accomplish the
desired result consistent with good business practices, reliability, economy,
safety and expedition, and which practices, methods, standards and acts
generally conform to operation and maintenance standards recommended by an FBO
operator's or airport manager's, as applicable, equipment suppliers and
manufacturers, applicable facility design limits and applicable governmental
approvals and law. "Prudent Industry Practice" is not intended to be limited to
the optimum practice or method to the exclusion of others, but rather to be a
spectrum of possible but reasonable practices and methods.
"Quarterly Funds Transfer Date" means the last Business Day of each March,
June, September and December occurring after the Refinancing Term Loan
Disbursement Date.
"Receivables" means, at any time, all of the accounts owing to the
Borrower and its Subsidiaries or any of them, net of any charges or reserves
against such accounts in accordance with GAAP, as determined by reference to the
most recent monthly operating reports of the Borrower and its Subsidiaries, less
any account (to the extent not already accounted for in the charge or reserve
against doubtful accounts) that is not paid within 90 days after the invoice
date.
"Reference Debt" means with respect to any Person, the long-term unsecured
Indebtedness of such Person not benefiting from any guarantee, support agreement
or other credit enhancement.
"Reference Rate" means, as of any date, three-month LIBOR determined as of
approximately 11:00 a.m. (London time) on such date.
"Refinancing Term Loan" has the meaning specified in Section 2.1(a) of
this Agreement.
"Refinancing Term Loan Commitment" means, with respect to each Term Loan
Lender, the commitment of such Term Loan Lender to make Refinancing Term Loans
to the Borrower pursuant to Section 2.1 of this Agreement, in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth
opposite such Term Loan Lender's name on Schedule 2.1 attached to this Agreement
under the heading "Refinancing Term Loan
Commitment" or in the Assignment and Assumption pursuant to which such Term Loan
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.
"Refinancing Term Loan Commitment Period" means, with respect to the
Refinancing Term Loan Commitments, the period from and including the Closing
Date under, and as defined in, the Original Loan Agreement, to the earliest to
occur of (a) January 9, 2006, (b) the date on which the Available Refinancing
Term Loan Commitments are reduced to zero, and (c) the date of termination of
the aggregate Refinancing Term Loan Commitments.
"Refinancing Term Loan Disbursement Date" means December 14, 2005, the
date of the Borrowing of the Refinancing Term Loans.
"Refinancing Term Loan Lender" means (a) on the Closing Date, the holders
of Refinancing Term Loan Commitments as set forth on Schedule 2.1 attached to
this Agreement, and (b) thereafter, the Lenders from time to time holding
Refinancing Term Loan Commitments after giving effect to any assignments
permitted by Section 10.4 of this Agreement.
"Reimbursement Obligations" means, at any time, the obligation of the
Borrower with respect to any of the Letters of Credit to reimburse amounts paid
by the Issuing Bank with respect to any Drawing under such Letter of Credit.
"Reportable Event" has the meaning given to that term in Section 4043(c)
of ERISA and applicable regulations thereunder other than an event as to which
the reporting requirements have by regulation been waived; provided that failure
to meet the minimum funding standards of Section 412 of the Code or Section 302
of ERISA shall be a Reportable Event.
"Required Lenders" means, at any time, (a) Lenders (and, to the extent
applicable, Hedging Banks) holding 66-2/3% or more of the aggregate then
Outstanding Exposure (provided, that for the avoidance of doubt, such percentage
shall take into account the proviso in the definition of the term "Outstanding
Exposure") or (b) if there are no Loans or Letter of Credit Usage outstanding,
Lenders holding 66-2/3% or more of the aggregate Commitments.
"Responsible Officer" means, (i) when used with respect to the Borrower or
any other Loan Party, the chief executive officer, president, chief financial
officer, treasurer or assistant treasurer of such Person authorized by the board
of directors of such Person to act on behalf of such Person in respect of the
Loan Documents and notified in writing to the Administrative Agent; and (ii)
when used with respect to the Collateral Agent, any officer within the corporate
trust department of the Collateral Agent, including any vice president,
assistant vice president, treasurer, assistant treasurer, trust officer or any
other officer of the Collateral Agent who customarily performs functions similar
to those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of such
person's knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of the Collateral Agency
Agreement. Any document or certificate hereunder that is signed by a Responsible
Officer shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of the Borrower or other
applicable Person.
"Restoration" means, in the case of any Event of Loss, the restoration,
repair, replacement or rebuilding of the affected Property subject to the Event
of Loss, as nearly as practicable to its value, condition and character
immediately prior to such Event of Loss, with such alterations and additions as
may be made by the applicable Loan Party, pursuant to and subject to any
restoration plan approved by the Administrative Agent in the case of any
Material Loss.
"Restoration Plan" means, in the case of any Material Loss, a plan for the
Restoration of the affected Property, certified by a Responsible Officer of the
Borrower, demonstrating that (i) the Restoration is technically feasible and can
be completed within a reasonable period of time consistent with the nature and
extent of the Event of Loss, (ii) all Governmental Approvals required for the
Restoration have been obtained or can be obtained in due course, and (iii) the
Restoration will not result in a termination, cancellation, revocation or other
invalidity or impairment of any material Governmental Approval, any FBO Lease,
any Management Contract, the Heliport Contract or any other Material Contract,
as applicable.
"Revolver Default" means any event or occurrence, which, with the passage
of time or the giving of notice or both, would become a Revolver Event of
Default.
"Revolver Event of Default" means any event or circumstance which would
constitute an Event of Default hereunder, if the terms of this Agreement and the
other Loan Documents were interpreted without giving effect to any amendment,
waiver or consent granted or agreed to by the Required Lenders pursuant to
Section 10.1 of this Agreement (unless the Revolving Loan Lender approves any
such amendment, waiver or consent in writing); provided that (i) with respect to
any event or circumstance that constituted a Default or Event of Default at the
time of any such amendment, waiver or consent, such event or circumstance shall
not constitute a Revolver Event of Default unless the Revolving Loan Lender has
given notice of the exercise of its rights under Section 7.2(b) of this
Agreement within 15 days after written notice of the effectiveness of the
amendment, waiver or consent granted or agreed to by the Required Lenders, and
(ii) any other event or circumstance shall not constitute a Revolver Event of
Default unless the Revolving Loan Lender has advised the Borrower and the
Administrative Agent in writing within 15 days after written notice of the
effectiveness of the amendment, waiver or consent relating thereto that the
Revolving Loan Lender will require compliance with the terms of this Agreement
without reference to such amendment, waiver or consent. If notice is required by
any term of this Agreement as a condition to the existence of an Event of
Default, for purposes of a Revolver Event of Default, notice from the Revolving
Loan Lender shall constitute such notice, the term of any such provision to the
contrary notwithstanding.
"Revolving Loan" has the meaning specified in Section 2.2(a) of this
Agreement.
"Revolving Loan Borrowing" means a borrowing consisting of Revolving Loans
made by the Revolving Loan Lender pursuant to this Agreement.
"Revolving Loan Borrowing Request" means a request by the Borrower for a
Revolving Loan Borrowing in accordance with Section 2.2 of this Agreement.
"Revolving Loan Commitment" means the commitment of the Revolving Loan
Lender to make Revolving Loans to the Borrower pursuant to Section 2.2 of this
Agreement (and thereafter to make additional Revolving Loans to reimburse
Drawings under Letters of Credit pursuant to Section 2.13 of this Agreement), in
an aggregate principal amount at any one time outstanding not to exceed
$5,000,000 (which amount shall be inclusive of the Letter of Credit Sublimit),
as such amount may be adjusted from time to time in accordance with this
Agreement.
"Revolving Loan Commitment Period" means, with respect to the Revolving
Loan Commitment, the period from and including the Closing Date to the earliest
to occur of (a) the Revolving Loan Commitment Termination Date, (b) the date on
which the Available Revolving Loan Commitments are reduced to zero, and (c) the
date of termination of the aggregate Revolving Loan Commitments.
"Revolving Loan Commitment Termination Date" means the date that is five
(5) days prior to the Maturity Date; provided that if such date is a day other
than a Business Day, the Revolving Loan Commitment Termination Date shall be the
next succeeding Business Day unless such next succeeding Business Day falls in
the next calendar month, in which case the Revolving Loan Commitment Termination
Date shall be the immediately preceding Business Day.
"Revolving Loan Lender" means Mizuho Corporate Bank, Ltd., and any
permitted successor thereto.
"Secured Parties" means collectively, the Collateral Agent, the Securities
Intermediary, the Administrative Agent, the Lenders, the Issuing Bank, and the
Hedging Banks.
"Securities Account" has the meaning specified in Section 5.10 of the
Collateral Agency Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Intermediary" means The Bank of New York, a New York banking
corporation, in its capacity as securities intermediary under the Collateral
Agency Agreement, or any Person appointed to replace such Person with the
authority to exercise and perform the rights and duties of the Securities
Intermediary under the Collateral Agency Agreement.
"Security Agreement" means the Security Agreement, dated as of December
12, 2005, between the Borrower and the Collateral Agent for the benefit of the
Secured Parties, as well as each security agreement delivered in accordance with
Section 6.1(k) of this Agreement.
"Security Documents" means the Collateral Agency Agreement, the Security
Agreement, the Subsidiary Security Agreement, together with any joinders
thereto, the Executive Intellectual Property Security Agreement, the Trajen
Intellectual Property Security Agreement, the Pledge Agreements, the Subsidiary
Guaranty and the Contribution Agreement, together with any joinders thereto,
each leasehold mortgage or leasehold deed of trust from time to time recorded
with the appropriate recording office with respect to the assignment of
leasehold interest in each of the FBO Leases, each control agreement entered
into with a depositary institution or securities
intermediary, each consent or acknowledgment by an Airport Authority regarding
the collateral assignment of the rights and obligations of the applicable Loan
Party pursuant to the relevant FBO Lease and/or the equity interests of such
Loan Party, and all other instruments, agreements, certificates, opinions and
documents (including Uniform Commercial Code financing statements and fixture
filings and landlord waivers) delivered to the Collateral Agent or any Lender in
connection with any Collateral or to secure the Obligations.
"Solvent" means, with respect to any Person on any date, that on such date
(a) the fair value of the Property of such Person is greater than the fair value
of the liabilities (including contingent, subordinated, matured and unliquidated
liabilities) of such Person, (b) the present fair saleable value of the assets
of such Person is greater than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as such debts and
liabilities mature and (d) such Person is not engaged in or about to engage in
business or transactions for which such Person's Property would constitute an
unreasonably small capital.
"Special Reserve Account" means the "Special Reserve Account" established
and created in the name of the Collateral Agent pursuant to Section 5.01 of the
Collateral Agency Agreement.
"S&P" or "Standard & Poor's" means Standard & Poor's Rating Service, a
division of The McGraw-Hill Companies, Inc. or any successor thereto.
"Subsidiary" of any Person means (a) any corporation of which the required
percentage of the issued and outstanding Equity Securities having ordinary
voting power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or
more of such Person's other Subsidiaries, (b) any partnership, joint venture,
limited liability company or other association of which the required percentage
of the equity interest having the power to vote, direct or control the
management of such partnership, joint venture or other association is at the
time owned and controlled by such Person, by such Person and one or more of the
other Subsidiaries or by one or more of such Person's other Subsidiaries or (c)
any other Person included in the Financial Statements of such Person on a
consolidated basis. Unless otherwise indicated in this Agreement, "Subsidiary"
means a Subsidiary of the Borrower.
"Subsidiary Guaranty" means that certain Subsidiary Guaranty dated as of
December 12, 2005 and executed by each Subsidiary of the Borrower in favor of
the Secured Parties.
"Subsidiary Security Agreement" means that certain Subsidiary Security
Agreement dated as of December 12, 2005 and executed by each Subsidiary of the
Borrower and the Collateral Agent on behalf of the Secured Parties.
"Tax" or "Taxes" means all present or future fees, taxes (including,
without limitation, income taxes, sales taxes, use taxes, stamp taxes,
value-added taxes, excise taxes, ad valorem taxes and property taxes (personal
and real, tangible and intangible)), levies, assessments, withholdings and other
charges and impositions of any nature, plus all related interest, penalties,
fines and additions to tax, now or hereafter imposed by any federal, state,
local or foreign government or other taxing authority.
"Technical Advisor" means Leigh Fisher Associates, a division of Jacobs
Consulting Inc., or any other firm reasonably acceptable to the Borrower as the
Administrative Agent shall designate.
"Term Loan" has the meaning specified in Section 2.1(a) of this Agreement.
"Term Loan Borrowing" means the borrowing consisting of Term Loans made or
to be made by the Term Loan Lenders pursuant to this Agreement.
"Term Loan Borrowing Request" means a request by the Borrower for a Term
Loan Borrowing in accordance with Section 2.1 of this Agreement.
"Term Loan Commitment" means, with respect to each Term Loan Lender, the
Refinancing Term Loan Commitment and the Trajen Acquisition Term Loan
Commitment.
"Term Loan Commitment Period" means the Refinancing Term Loan Commitment
Period and the Trajen Acquisition Term Loan Commitment Period.
"Term Loan Lender" means (a) on the Closing Date, the holders of Term Loan
Commitments as set forth on Schedule 2.1 attached to this Agreement, and (b)
thereafter, the Lenders from time to time holding Term Loan Commitments after
giving effect to any assignments permitted by Section 10.4 of this Agreement.
"Total Funded Debt" means, as of any date of determination, with respect
to the Borrower and its Subsidiaries on a consolidated basis, the outstanding
Obligations under this Agreement.
"Trajen" means Trajen Holdings, Inc., a Delaware corporation.
"Trajen Acquisition" means the consummation of the purchase of all of the
outstanding Equity Securities of Trajen by the Investor pursuant to the Trajen
Purchase Agreement (as defined in Schedule A-3 hereto) and the assignment of
100% of the ownership interest in such Equity Securities by the Investor to the
Borrower.
"Trajen Acquisition Term Loan" has the meaning specified in Section 2.1(a)
of this Agreement.
"Trajen Acquisition Term Loan Commitment" means, with respect to each Term
Loan Lender, the commitment of such Term Loan Lender to make Trajen Acquisition
Term Loans to the Borrower pursuant to Section 2.1 of this Agreement, in an
aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Term Loan
Lender's name on Schedule 2.1 attached to this Agreement under the heading
"Trajen Acquisition Term Loan Commitment" or in the Assignment and Assumption
pursuant to which such Term Loan Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with this
Agreement.
"Trajen Acquisition Term Loan Commitment Period" means, with respect to
the Trajen Acquisition Term Loan Commitments, the period from and including the
Closing Date (as defined in this Agreement) to the earliest to occur of (a)
December 31, 2006, (b) the date on which the Available Acquisition Term Loan
Commitments are reduced to zero, and (c) the date of termination of the
aggregate Acquisition Term Loan Commitments.
"Trajen Acquisition Term Loan Disbursement Date" means the date of the
Borrowing of Trajen Acquisition Term Loans the proceeds of which will finance a
portion of the acquisition and related costs in connection with the Trajen
Acquisition.
"Trajen Acquisition Term Loan Lender" means (a) on the Closing Date, the
holders of the Trajen Acquisition Term Loan Commitments as set forth on Schedule
2.1 attached to this Agreement, and (b) thereafter, the Lenders from time to
time holding Trajen Acquisition Term Loan Commitments after giving effect to any
assignments permitted by Section 10.4 of this Agreement.
"Trajen FBO Leases" means, collectively, the leases or use agreements with
or on behalf of the relevant Airport Authorities, and other real property leases
and related agreements with the relevant Airport Authorities associated
therewith, relating to the fixed base operations of Trajen and any of Trajen's
Subsidiaries, as set forth in Schedule A-1.
"Trajen Intellectual Property Security Agreement" has the meaning
specified in Section 4.3(a)(i)(C) of this Agreement.
"Type" means, with respect to any Loan or Borrowing at any time, the
classification of such Loan or Borrowing in accordance with the type of interest
rate it then bears, whether an interest rate based upon the Base Rate or LIBOR.
"Uniform Commercial Code" or "UCC" means the New York Uniform Commercial
Code, as in effect from time to time.
RULES OF INTERPRETATION
1. Definitions of terms shall apply equally to the singular and plural
forms of the terms defined.
2. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation".
3. The word "will" shall be construed to have the same meaning and
effect as the word "shall".
4. A reference to a Legal Requirement includes any amendment or
modification to such Legal Requirement, and all regulations, rulings
and other Legal Requirement promulgated under such Legal
Requirement.
5. A reference to a Person shall be construed to include its successors
and assigns.
6. Except as otherwise expressly specified, all accounting terms have
the meanings assigned to them by GAAP, as in effect from time to
time.
7. A reference in a document to an Article, Section, Exhibit, Schedule,
Annex or Appendix is to the Article, Section, Exhibit, Schedule,
Annex or Appendix of such document unless otherwise indicated.
Exhibits, Schedules, Annexes or Appendices to any document shall be
deemed incorporated by reference in such document.
8. Any definition of or reference to any agreement, instrument or other
document shall be construed as referring to such agreement,
instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth in the Loan
Documents).
9. The words "hereof," "herein" and "hereunder" and words of similar
import when used in any document shall refer to such document as a
whole and not to any particular provision of such document.
10. References to "days" means calendar days, unless the term "Business
Days" shall be used. References to a time of day means such time in
New York, New York, unless otherwise specified.
11. The Loan Documents are the result of negotiations between, and have
been reviewed by the Borrower, the Administrative Agent, each Lender
and their respective counsel. Accordingly, the Loan Documents shall
be deemed to be the product of all parties thereto, and no ambiguity
shall be construed in favor of or against the Borrower, the
Administrative Agent or any Lender.
SCHEDULES TO LOAN AGREEMENT
Unless the context otherwise requires, all capitalized terms used in these
disclosure Schedules shall have the respective meanings assigned to them in this
Agreement. No reference to or disclosure of any item or other matter in these
Schedules shall be construed as an admission or indication that such item or
other matter is material or that such item or other matter is required to be
referred to or disclosed pursuant to this Agreement. Certain agreements and
other matters are listed herein, notwithstanding the fact that, because they do
not rise above applicable materiality thresholds or otherwise, they are not
required to be listed by the terms of this Agreement. No reference or listing in
these Schedules to any agreement or document shall be construed as an admission
or indication that such agreement or document is enforceable or currently in
effect or that there are any obligations remaining to be performed or any rights
that may be exercised under such agreement or document (provided that such
statement does not limit any representation or warranty contained in any Loan
Document to the effect that any agreement or document is enforceable against any
Person or is in full force and effect). References to any document herein that
has been previously delivered to the Administrative Agent or to Orrick,
Herrington & Sutcliffe LLP are qualified in their entirety by the document
itself.
The disclosures contained in these schedules are intended only to list those
items required to be listed in the Sections of this Agreement corresponding to
the number of the schedule, and to qualify and limit the representations and
warranties of the Borrower contained in this Agreement, and shall not be deemed
to expand in any way the scope or effect of any of such representations or
warranties.
Schedule A-1
to Loan Agreement
SCHEDULE A-1
FBO LEASES
MIDWAY
1. Facilities Lease and Use Agreement dated as of September 23, 2003, between
the City of Chicago and Atlantic Aviation Corporation for property located
at Chicago Midway Airport.
TETERBORO
2. Use and Occupancy Agreement dated as of January 1, 1986, between Johnson
Controls World Services, Inc. (successor by assignment to Pan American
World Airways, Inc.) and Atlantic Aviation Corporation (successor by
assignment to Texaco, Inc.), as amended and supplemented on July 8, 1988,
January 23, 1995, May 27, 1999 and August 23, 2000, for property located
at Teterboro Airport.
3. Use and Occupancy Agreement dated as of February 14, 1979, between Johnson
Controls World Services Inc. (successor by assignment to Pan American
World Airways, Inc.) and Atlantic Aviation Corporation, as amended and
supplemented on January 1, 1985, January 1, 1987, January 1, 1995, May 18,
1999, August 1, 1999, and August 23, 2000, for property located at
Teterboro Airport.
BRIDGEPORT
4. Lease and Operation Agreement dated as of September 1, 1995, between City
of Bridgeport and Bridgeport Airport Services, Inc. d/b/a Million Air
Bridgeport for property located at Sikorsky Memorial Airport (Hangars 1
and 2).
5. Lease and Operation Agreement dated as of September 5, 2002, between City
of Bridgeport and Bridgeport Airport Services, Inc. d/b/a Million Air
Bridgeport for property located at Sikorsky Memorial Airport (Hangars 3
and 4).
HARTFORD
6. Operating Agreement dated as of May 2, 1996, between the State of
Connecticut Department of Transportation and Brainard Airport Services,
Inc. d/b/a Million Air for management of Air One, Inc. and Charter Oak
Aviation, Inc. at Hartford-Brainard Airport.
7. Lease and Operating Agreement dated as of October 29, 1985, between the
State of Connecticut, Department of Transportation and Air One, Inc., as
amended on June 26, 1991, and November 10, 1997, for property located at
Hartford-Brainard Airport. Brainard was assigned Air One's obligations
under a January 11, 1999, Purchase Agreement.
8. Lease and Operating Agreement dated as of September 10, 1990, between the
State of Connecticut, Department of Transportation and Charter Oak
Aviation, Inc., as amended
Sched. A-1-2
on February 26, 1991, July 21, 1995, and October 6, 1999, for property
located at Hartford-Brainard Airport.
PHILADELPHIA AND NORTHEAST PHILADELPHIA
9. Lease Development, & Operating Agreement dated as of December 8, 1998,
between City of Philadelphia and Atlantic Aviation Flight Support, Inc.
(f/k/a Atlantic Aviation PHL, Inc.), as amended on May 27, 1999, July 1,
1999, October 6, 1999, September 29, 2000, September 6, 2001, and
_________, 2001 (Sixth Amendment), for properties located at Philadelphia
International Airport and Northeast Philadelphia Airport.
HOBBY
10. Lease Agreement dated August 25, 1970, between City of Houston and
Atlantic Aviation Corporation, as amended and supplemented on February 3,
1972, July 19, 1972, October 19, 1976, February 12, 1979, and November 2,
2000 (countersigned date), for property located at William P. Hobby
Airport.
11. Lease Agreement dated as of November 9, 1993, between City of Houston and
Atlantic Aviation Corporation, as amended on February 6, 1997 and July 1,
2005 (effective date), for property located at William P. Hobby Airport.
FARMINGDALE
12. Lease Agreement dated November 19, 1987, between the New York State
Department of Transportation and Flightways of Long Island, Inc., as
amended on January 21, 1992, October 15, 1992, September 30, 1993, May 10,
1993, February 11, 1994, and December 24, 1997, for property located at
Republic Airport.
NEW ORLEANS INTERNATIONAL AIRPORT
13. Lease dated September 7, 1977, between City of New Orleans and General
Aviation Corporation, as amended on November 5, 1986, for property located
at New Orleans International Airport.
14. FBO Lease and Use Agreement dated effective March 23, 2001, between New
Orleans Aviation Board and General Aviation, L.L.C., successor by merger
to General Aviation Corporation, as amended on March 22, 2002, for
property located at New Orleans International Airport.
NEW ORLEANS LAKEFRONT
15. Contract of Lease dated February 1, 1995, between Board of Commissioners
of Orleans Levee District and General Aviation of New Orleans, Inc. for
property located at New Orleans Lakefront Airport.
16. [Reserved.]
PALM SPRINGS
17. Indenture of Lease and Aeronautical Concession Agreement effective
December 15, 1981 between the City of Palm Springs, California and Jimsair
Aviation Services, Inc., as modified by that certain Amendment No. 1 dated
September 18, 1986, as further modified by that certain Option Agreement
dated September 18, 1986 between the City of Palm Springs and Jimsair
Aviation Services, Inc., as further modified by that certain
Sched. A-1-3
Consent to Assignment and Encumbrance of Ground Lease Interest
dated March 17, 1994 among the City of Palm Springs and Dorfinco
Corporation and Air Sources, Inc.
JOHN WAYNE AIRPORT -- NEWPORT JET CENTER
18. FBO Lease dated October 24, 1994, by and between County of Orange and Pan
Western, Ltd., a California limited partnership, as amended by that
certain First Amendment to Ground Lease between County of Orange and Pan
Western, Ltd., dated November 19, 1996, that certain Second Amendment to
FBO Lease between County of Orange and Pan Western, Ltd., dated March 24,
1998, that certain Third Amendment to FBO Lease dated March 24, 1998
executed by the County of Orange as Lessor and Pan Western, Ltd., as
Tenant, and that certain Fourth Amendment to FBO Lease dated December 19,
2002 executed by the County of Orange as Lessor and Newport FBO Two, LLC,
as Tenant.
PITTSBURGH INTERNATIONAL AIRPORT
19. Lease Agreement (No. 38925), dated January 28, 1998, by and between the
County of Allegheny and American
Port Services, Inc.; amended by Amendment Agreement, dated July 12, 1999;
amended by Second Amendment, dated September 13, 2001; and further amended
by Letter, dated August 24, 2000, from the County of Allegheny, revising
Exhibit A to confirm surveyed lease areas; as assigned by Assignment
Agreement dated November 5, 2002 by and between Alleghany County Airport
Authority, American Port Services Inc and Macquarie Aviation north America
2 Inc. (Pittsburgh)
20. License Agreement (No. 38926), dated January 28, 1998, by and between the
County of Allegheny, as licensor, and American Port Services, Inc., as
licensee; as assigned by Assignment Agreement dated November 5, 2002 by
and between Alleghany County Airport Authority, American Port Services Inc
and Macquarie Aviation north America 2 Inc. (Pittsburgh)
LOUISVILLE INTERNATIONAL AIRPORT
21. Fixed Base Operator Lease and Concession Agreement, dated March 20, 1996,
by and between the Regional Airport Authority of Louisville and Jefferson
County and Johnson Controls World Services, Inc., as amended by First
Amendment, dated October 14, 1996, to the Fixed Base Operator Lease and
Concession Agreement dated March 20, 1996, by and between the Regional
Airport Authority of Louisville and Jefferson County and Johnson Controls
World Services, Inc.; assigned by the Assignment of Contract, Amendment
and Consent, dated July 30, 1997, by and among the Regional Airport
Authority of Louisville and Jefferson County, Johnson Controls World
Services, Inc. and American Port Services, Inc.; and further amended by
Letter Agreement, dated July 10, 2001, by and between Regional Airport
Authority of Louisville and Jefferson County and American Port Services,
Inc.; and assigned by Consent dated November 1, 2002, by the Regional
Airport Authority of Louisville and Jefferson County in favour of American
Port Services Inc and Macquarie Aviation North America 2 Inc. (Louisville)
22. [Reserved]
Sched. A-1-4
GULFPORT-BILOXI REGIONAL AIRPORT
23. Amended Fixed Base Operator Lease with U.S. Aviation Corporation, dated
May 1, 1991, by and between the Gulfport-Biloxi Regional Airport Authority
and U.S. Aviation Corporation, which amends and restates the lease, dated
February 8, 1980, entered into by the Gulfport-Biloxi Regional Airport
Authority with Aero International, Inc.; assigned by Assignment and
Assumption of Leases, dated as of September 18, 2000, between U.S.
Aviation, Inc. as assignor and American Port Services, Inc., as assignee;
and consented to by Consent to Assignment and Estoppel Certificate, dated
September 15, 2000, by the Gulfport-Biloxi Regional Airport Authority to
and in favor of U.S. Aviation, Inc. and American Port Services, Inc. and
assigned by Assignment and Assumption of Leases dated November 5, 2002 by
and between American Port Services Inc and Macquarie Aviation North
America 2 Inc. (Gulfport)
24. Fixed Base Operator Lease, dated September 3, 1997, between the
Gulfport-Biloxi Regional Airport Authority and U.S. Aviation Corporation;
assigned by Assignment and Assumption of Leases, dated as of September 18,
2000, by and between U.S. Aviation, Inc., as assignor to American Port
Services, Inc., as assignee; and consented to by Consent of Assignment and
Estoppel Certificate, dated September 15, 2000, by the Gulfport-Biloxi
Regional Airport Authority to and in favor of American Port Services, Inc.
and U.S. Aviation, Inc. and assigned by Assignment and Assumption of
Leases dated November 5, 2002 by and between American Port Services Inc
and Macquarie Aviation North America 2 Inc. (Ramp Lease, Gulfport)
25. Bare Ground Lease for Fuel Farm, dated March 5, 1999, between the
Gulfport-Biloxi Regional Airport Authority and U.S. Aviation Corporation;
assigned by Assignment and Assumption of Leases, dated as of September 18,
2000, by and between U.S. Aviation, Inc., as assignor to American Port
Services, Inc., as assignee; and consented to by Consent of Assignment and
Estoppel Certificate, dated September 15, 2000, by the Gulfport-Biloxi
Regional Airport Authority to and in favor of American Port Services, Inc.
and U.S. Aviation, Inc. and assigned by Assignment and Assumption of
Leases dated November 5, 2002 by and between American Port Services Inc
and Macquarie Aviation North America 2 Inc. (Fuel Farm Lease, Gulfport)
BURLINGTON AIRPORT
26. Lease between the City of Burlington, Airport Realty Associates and Valley
Air Services, Inc., dated February 19, 1986; modified by Modification of
Lease, dated September 13, 1989; further modified by Second Modification
of Lease Agreement, dated September 13, 1989; further modified by Third
Modification of Lease Agreement, dated January 11, 1992; assigned to HCA
Airport Realty, LLC by a Deed of Transfer and Assignment of Leases, dated
March 14, 1997; sublet to Valley Air Services, Inc. by Sublease, dated
March 14, 1997, between HCA Airport Realty, LLC and Valley Air Services,
Inc.; assignment and sublet consented to by Consent to Assignment and
Assumption of Leases, dated March 14, 1997; amended by Letter Agreement,
dated March 14, 1997, by
Sched. A-1-5
and among the City of Burlington, HCA Airport Realty, LLC and Valley Air
Services, Inc.; further modified by Fourth Modification of Lease
Agreement, dated November 25, 1997; further assigned by Assignment of
Leases and Agreement, dated July 2, 2001, by and between HCA Airport
Realty, LLC, Valley Air Services, Inc. and HCA Aircraft Services, LLC, as
assignors, Amports Avcenters, Inc., as assignee and American Port
Services, Inc.; and assignment consented to and lease further modified by
Consent to Assignment and Assumption of Leases and Lease Amendment
Agreement, dated July 2, 2001, by and among the City of Burlington,
American Port Services, Inc., Amports Avcenters, Inc., Valley Air
Services, Inc., HCA Airport Realty, LLC and
HCA Aircraft Services, LLC.; as guaranteed by Macquarie Airports North
America Inc under Termination and Release Agreement dated October 28, 2002
by the City of Burlington, Vermont in favor of American port Services Inc
and Macquarie Airports North America Inc. (Heritage East Lease,
Burlington)
27. Fixed Base Operator and Lease Agreement between the City of Burlington and
HCA Aircraft Services, LLC, dated November 25, 1997; sublet to Valley Air
Services, Inc. by Sublease, dated as of November 25, 1997; modified by
Letter Agreement, dated September 14, 1998, by and among the City of
Burlington, HCA Airport Realty, LLC, HCA Aircraft Services, LLC, Valley
Air Services, Inc., Valet Air Services, Inc., Neagley & Chase Construction
Company and Burlington Community Development Corporation; assigned by
Assignment of Leases and Agreement, dated July 2, 2001, by and among
American Port Services, Inc., Amports Avcenters, Inc., as assignee, Valley
Air Services, Inc., HCA Airport Realty, LLC and HCA Aircraft Services,
LLC, as assignors; and assignment consented to and lease further modified
by Consent to Assignment and Assumption of Leases and Lease Amendment
Agreement, dated July 2, 2001, by and among the City of Burlington,
American Port Services, Inc., Amports Avcenters, Inc., Valley Air
Services, Inc., HCA Airport Realty, LLC and HCA Aircraft Services, LLC. ;
as guaranteed by Macquarie Airports North America Inc under Termination
and Release Agreement dated October 28, 2002 by the City of Burlington,
Vermont in favor of American port Services Inc and Macquarie Airports
North America Inc. (Heritage West Lease, Burlington)
28. Lease Agreement (1) between Burlington Community Development Corporation
and HCA Aircraft Services, LLC, dated November 25, 1997; Subordination,
Attornment and Non-Disturbance Agreement, dated November 25, 1997, by and
among The Howard Bank, N.A., HCA Aircraft Services, LLC and Burlington
Community Development Corporation; sublet to Valley Air Services, Inc. by
Sublease, dated as of November 25, 1997; modified by Letter Agreement,
dated September 14, 1998, by and among the City of Burlington, HCA Airport
Realty, LLC, HCA Aircraft Services, LLC, Valley Air Services, Inc., Valet
Air Services, Inc., Neagley & Chase Construction Company and Burlington
Community Development Corporation; assigned by Assignment of Leases and
Agreement, dated July 2, 2001, by and among American Port Services, Inc.,
Amports Avcenters, Inc., as assignee, Valley Air Services, Inc., HCA
Airport Realty, LLC and
- ----------
(1) This Lease is actually a sublease which is subject to Ground Lease and
Agency Agreement, dated as of November 25, 1997, between the City of Burlington
and Burlington Community Development Corporation.
Sched. A-1-6
HCA Aircraft Services, LLC, as assignors; and assignment consented to and
further modified by Consent to Assignment and Assumption of Leases and
Lease Amendment Agreement, dated July 2, 2001, by and among the City of
Burlington, American Port Services, Inc., Amports Avcenters, Inc., Valley
Air Services, Inc., HCA Airport Realty, LLC and HCA Aircraft Services,
LLC, and by Letter Agreement, dated July 3, 2001, by and among The Howard
Bank, N.A., HCA Aircraft Services, LLC, Burlington Community Development
Corporation and Amports Avcenters, Inc. ; as guaranteed by Macquarie
Airports North America Inc under Termination and Release Agreement dated
October 28, 2002 by the City of Burlington, Vermont in favor of American
port Services Inc and Macquarie Airports North America Inc. (North Hangar
Lease, Burlington)
29. Consent to Assignment and Assumption of Leases and Lease Amendment
Agreement, dated July 2, 2001 between the City of Burlington, Vermont;
American Port Services, Inc., a Delaware corporation having a principal
place of business in Baltimore, Maryland; Amports Avcenters, Inc., a
Delaware corporation qualified to do business in Vermont; Valley Air
Services, Inc. d/b/a Heritage Flight, a Vermont corporation qualified to
do business in Vermont; HCA Airport Realty, LLC, a Vermont limited
liability company qualified to do business in Vermont, and HCA Aircraft
Services, LLC, a Vermont limited liability company qualified to do
business in Vermont.
30. Second Amendment to Leases and Agreement Respecting Environmental Matters
by and between BTV AvCenter, Inc. (d/b/a FBO Avcenter-Burlington, and
formerly known as Amports Avcenters, Inc.); Macquarie Airports North
America, Inc.; and the City of Burlington, Vermont, dated August 10, 2004
NEW CASTLE AIRPORT
31. Lease Agreement (1), dated September 25, 1987, by and between New Castle
County and Dawn Aeronautics, Inc., assigned by Assignment of Lease, dated
November 12, 1996, by and between Dawn Aeronautics, Inc., as assignor to
Dawn Aero, Inc., as assignee; and Memorandum of Lease, dated August 10,
1998, by and between Delaware River and Bay Authority and Dawn Aero, Inc.
(New Castle)
32. Lease, dated April __ 2005, between The Delaware River and Bay Authority,
as lessor, and ILG Avcenter, Inc., as lessee
MCCARRAN INTERNATIONAL AIRPORT
33. Lease Agreement, dated June 18, 1996, the County of Clark, a political
subdivision of the State of Nevada, and Eagle Aviation Resources Ltd., a
Nevada limited liability company.
- ----------
(1) This Lease is actually a sublease which is subject to a (i) Ground Lease,
dated June 30, 1995, by and between New Castle County and Delaware River
and Bay Authority, and (ii) Instrument of Transfer between the United
States of America and Levy Court of New Castle County, Delaware, dated
April 29, 1949, recorded in Deed Record C, Volume 49, Page 75.
Sched. A-1-7
Schedule A-2
to Loan Agreement
SCHEDULE A-2
MANAGEMENT CONTRACTS AND HELIPORT CONTRACT
ATLANTIC CITY INTERNATIONAL AIRPORT
1. Management Agreement for the Operation of the Atlantic City International
Airport, dated August 20, 2001, by and between South Jersey Transportation
Authority and American Port Services, Inc. ; and assigned by Consent dated
October 22, 2002, by the South Jersey Transportation Authority in favour
of American Port Services Inc and Macquarie Aviation North America 2 Inc.
REPUBLIC AIRPORT
2. Management and Operation of Republic Airport Agreement, dated April 1,
2000, between the People of the State of New York and American Port
Services, Inc., as supplemented by Supplemental Agreement No. 1, effective
as of April 1, 2001, between the People of the State of New York, acting
by and through the Commissioner of Transportation and the Department of
Transportation, and American Port Services, Inc.; and as further
supplemented by Supplemental Agreement No. 2, effective as of April 1,
2002, between the People of the State of New York, acting by and through
the Commissioner of Transportation and the Department of Transportation,
and American Port Services, Inc; as assigned by Consent dated September
13, 2002, by the The People of the Sate of New York acting by and through
the Department of Transportation in favour of American Port Services Inc
and Macquarie Aviation North America 2 Inc.
3. Engineering and Capital Project Management Agreement, dated April 1, 2000,
between the People of the State of New York, acting by and through the
Department of Transportation and American Port Services, Inc.; as
supplemented by Supplemental Agreement No. 1 for Capital Facilities
Development, dated April 1, 2001, between the People of the State of New
York acting by and through the Commissioner of Transportation and the
Department of Transportation and American Port Services, Inc.,
Supplemental Agreement No. 2 for Capital Facilities Development, effective
as of October 24, 2001, between the People of the State of New York,
acting by and through the Commissioner of Transportation and the
Department of Transportation, and American Port Services, Inc. as further
supplemented by Supplemental Agreement No. 3 for Capital Facilities
Development, effective as of February 1, 2002, between the People of the
State of New York, acting by and through the Commissioner of
Transportation and the Department of Transportation, and American Port
Services, Inc. and as further supplemented by Supplemental Agreement No. 4
for Capital Facilities Development, effective as of May 1, 2002, between
the People of the State of New York, acting by and
Sched. A-2-1
through the Commissioner of Transportation and the Department of
Transportation, and American Port Services, Inc.; as assigned by Consent
dated September 13, 2002, by the The People of the Sate of New York acting
by and through the Department of Transportation in favour of American Port
Services Inc and Macquarie Aviation North America 2 Inc.; as further
supplemented by Supplemental Agreement No. 5 for Capital Facilities
Development, effective as of March 28, 2003, between the People of the
State of New York, acting by and through the Commissioner of
Transportation and the Department of Transportation, and Macquarie
Aviation North America 2, Inc.; as extended by Contract Extension
Memorandum dated December 3, 2004 by and between the People of the State
of New York, acting by and through the Commissioner of Transportation and
the Department of Transportation, and Macquarie Aviation North America 2,
Inc.; as further supplemented by Supplemental Agreement No. 6 for Capital
Facilities Development, effective as of August 8, 2005, between the People
of the State of New York, acting by and through the Commissioner of
Transportation and the Department of Transportation, and Macquarie
Aviation North America 2, Inc.; as further supplemented by Supplemental
Agreement No. 7 for Capital Facilities Development, effective as of
September 19, 2005, between the People of the State of New York, acting by
and through the Commissioner of Transportation and the Department of
Transportation, and Macquarie Aviation North America 2, Inc.; as further
supplemented by Supplemental Agreement No. 8 for Capital Facilities
Development, effective as of November 18, 2005, between the People of the
State of New York, acting by and through the Commissioner of
Transportation and the Department of Transportation, and Macquarie
Aviation North America 2, Inc.; and as further supplemented by
Supplemental Agreement No. 9 for Capital Facilities Development, effective
as of January 11, 2006, between the People of the State of New York,
acting by and through the Commissioner of Transportation and the
Department of Transportation, and Macquarie Aviation North America 2, Inc.
4. Project Specific Subcontract Management and Business Development Services
for Republic Airport, dated April 1, 2006, by and between Macquarie
Aviation North America 2 Inc. d/b/a Avports and URS Corporation-New York
TETERBORO AIRPORT
5. Agreement to Perform Operations and Maintenance at the Port Authority
Teterboro Airport, dated September 15, 2000, between the Port Authority of
New York and New Jersey and American Port Services, Inc., as supplemented
by Letter, dated October 7, 2002, from Cile Pace to Oswin Moore increasing
Management Fee thereunder. ; as assigned by Assignment with Assumption and
Consent Agreement dated November 27, 2002, by and among The Port Authority
of New York and New Jersey, American Port Services Inc and Macquarie
Aviation North America 2 Inc.
6. Use and Occupancy Agreement (File No. TA-306), dated December 1, 1999,
between Johnson Controls World Services, Inc. and American Port Services,
Inc., as consented to by Consent Agreement, dated December 15, 1999, by
and among Johnson Controls World Services, Inc., The Port Authority of New
York and New Jersey and American
Sched. A-2-2
Port Services, Inc.; and as supplemented by Supplemental Agreement, dated
August 23, 2000, by and between The Port Authority of New York and New
Jersey and American Port Services, Inc. ; as assigned by Assignment with
Assumption and Consent Agreement dated November 27, 2002, by and among The
Port Authority of New York and New Jersey, American Port Services Inc and
Macquarie Aviation North America 2 Inc.
TWEED - NEW HAVEN AIRPORT
7. Management Agreement for the Operation of Tweed-New Haven Airport, dated
July 1, 1998, between the Tweed-New Haven Airport Authority and American
Port Services, Inc.; as assigned by Consent and Agreement dated September
18, 2002, by and between Tweed-New Haven Airport Authority, American Port
Services Inc and Macquarie Aviation North America 2 Inc.
WESTCHESTER COUNTY AIRPORT
8. Contract for the Management and Operation of Westchester County Airport,
dated June 26, 1996, between the County of Westchester and Johnson
Controls World Services, Inc., as assigned by the Assignment Agreement,
dated July 1997, between the County of Westchester, Johnson Controls World
Services, Inc. and American Port Services, Inc.; as assigned by Consent
and Agreement dated December 12, 2002, by and between County of
Westchester, American Port Services Inc and Macquarie Aviation North
America Inc.
ALBANY INTERNATIONAL AIRPORT
9. Airport Management Services Agreement dated July 13, 2005 by and between
the Albany County Airport Authority and Macquarie Aviation North America
2, Inc.
34TH STREET HELIPORT
10. Operating Agreement between New York City Economic Development Corporation
and Macquarie Aviation North America, Inc. a/k/a Avports, dated as of
September 1, 2005
Sched. A-2-3
Schedule A-3
to Loan Agreement
SCHEDULE A-3
MATERIAL CONTRACTS
Each item set forth on Schedule A-1
Each item set forth on Schedule A-2
Sale and Purchase Agreement, dated as of July 29, 2002, by and among American
Port Services, Inc., a Delaware corporation, Macquarie Aviation North America
Inc., a Delaware corporation, Macquarie Aviation North America 2 Inc., a
Delaware corporation, Macquarie Specialised Asset Management Limited, as
trustee, for and on behalf of an Australian trust known as Macquarie Global
Infrastructure Fund A, and Macquarie Specialised Asset Management 2 Limited, as
trustee, for and on behalf of an Australian trust known as Macquarie Global
Infrastructure Fund B (the "Amports Purchase Agreement")
Stock Purchase Agreement by and between Macquarie Investment Holdings, Inc., a
Delaware corporation, Executive Air Support, Inc., a Delaware corporation
("Executive"), and the stockholders of Executive, dated as of April 28, 2004, as
assigned to North America Capital Holding Company, a Delaware corporation (the
"Executive Air Purchase Agreement")
Membership Interest Purchase Agreement by and between Macquarie FBO Holdings
LLC, a Delaware limited liability company, and Gene H. Yamagata, dated as of May
26, 2005 (the "Eagle Aviation Purchase Agreement")
Membership Interest Purchase Agreement, dated August 18, 2004, among the North
America Capital Holding Company, a Delaware corporation, Merced Partners Limited
Partnership, a Delaware limited partnership, Michael Phegley, an individual, and
Craig Foster, an individual, as amended August 20, 2004, August 24, 2004 and
December 29, 2004 (the "GAH Purchase Agreement")
Purchase and Sale Agreement, dated April 18, 2006, by and among Trajen Holdings,
Inc., the stockholders thereof and Macquarie FBO Holdings LLC (the "Trajen
Purchase Agreement")
Lease Agreement dated as of December 19, 2001, between CB Parkway Business
Center IV, Ltd. and Executive Air Support, Inc., as amended on March 15, 2002
and further amended on January 10, 2005 and May 26, 2006, for office space
located at 6504 International Parkway, Suite, 1100, Plano, Texas
Income Tax Sharing Agreement, dated as of December 23, 2004 (amended as of
December 31, 2005), by and among Macquarie Infrastructure Company, Inc. and
direct and indirect subsidiaries party thereto.
Sched. A-3-1
Schedule 2.1
to Loan Agreement
COMMITMENTS AND PRO RATA SHARES
TRAJEN TRAJEN
REFINANCING REFINANCING ACQUISITION ACQUISITION
TERM LOAN TERM LOAN PRO TERM LOAN TERM LOAN REVOLVING LOAN REVOLVING LOAN
LENDER COMMITMENT RATA SHARE COMMITMENT PRO RATA SHARE COMMITMENT PRO RATA SHARE
------------- -------------- ------------- ------------- -------------- -------------- ---------------
The Governor and Company of
the Bank of Ireland $ 37,500,000 12.50% $ 20,000,000 11.11% $ 0 0.00%
Bayerische Landesbank, New
York Branch $ 37,500,000 12.50% $ 20,000,000 11.11% $ 0 0.00%
Mizuho Corporate Bank, Ltd. $ 32,500,000 10.83% $ 20,000,000 11.11% $ 5,000,000 100.00%
Macquarie Bank Limited $ 35,000,000 11.66% $ 15,000,000 8.33% $ 0 0.00%
Banco Santander Central
Hispano, S.A $ 17,500,000 5.83% $ 20,000,000 11.11% $ 0 0.00%
DekaBank Deutsche Girozentrale $ 30,000,000 10.00% $ 20,000,000 11.11% $ 0 0.00%
Hypo Public Finance USA, Inc. $ 35,000,000 11.66% $ 22,500,000 12.50% $ 0 0.00%
Sched. 2.1-1
TRAJEN TRAJEN
REFINANCING REFINANCING ACQUISITION ACQUISITION
TERM LOAN TERM LOAN PRO TERM LOAN TERM LOAN REVOLVING LOAN REVOLVING LOAN
LENDER COMMITMENT RATA SHARE COMMITMENT PRO RATA SHARE COMMITMENT PRO RATA SHARE
--------------- -------------- ------------- ------------- -------------- -------------- ---------------
Landesbank Hessen-Thuringen
Girozentrale $ 25,000,000 8.33% $ 5,000,000 2.77% $ 0 0.00%
Lloyds TSB Bank plc $ 20,000,000 6.66% $ 0 0.00% $ 0 0.00%
Norddeutsche Landesbank
Girozentrale $ 30,000,000 10.00% $ 27,500,000 15.27% $ 0 0.00%
United Overseas Bank Limited $ 0 0.00% $ 10,000,000 5.55% $ 0 0.00%
Total $300,000,000 100% $180,000,000 100% $ 5,000,000 100%
============ ===== ============ ===== ============ =====
Sched. 2.1-2
Schedule 5.5
to Loan Agreement
SCHEDULE 5.5
FBO / MANAGEMENT CONTRACTS CONSENTS
Consents are required under the following agreements in order to assign any of
such agreements, or any rights thereunder, as contemplated by the Agreement:
See items set forth on Schedule A-1
MIDWAY
1. Facilities Lease and Use Agreement dated as of September 23, 2003, between
the City of Chicago and Atlantic Aviation Corporation for property located
at Chicago Midway Airport.
TETERBORO
2. Use and Occupancy Agreement dated as of January 1, 1986, between Johnson
Controls World Services, Inc. (successor by assignment to Pan American
World Airways, Inc.) and Atlantic Aviation Corporation (successor by
assignment to Texaco, Inc.), as amended and supplemented on July 8, 1988,
January 23, 1995, May 27, 1999 and August 23, 2000, for property located
at Teterboro Airport.
3. Use and Occupancy Agreement dated as of February 14, 1979, between Johnson
Controls World Services Inc. (successor by assignment to Pan American
World Airways, Inc.) and Atlantic Aviation Corporation, as amended and
supplemented on January 1, 1985, January 1, 1987, January 1, 1995, May 18,
1999, August 1, 1999, and August 23, 2000, for property located at
Teterboro Airport.
BRIDGEPORT
4. Lease and Operation Agreement dated as of September 1, 1995, between City
of Bridgeport and Bridgeport Airport Services, Inc. d/b/a Million Air
Bridgeport for property located at Sikorsky Memorial Airport (Hangars 1
and 2).
5. Lease and Operation Agreement dated as of September 5, 2002, between City
of Bridgeport and Bridgeport Airport Services, Inc. d/b/a Million Air
Bridgeport for property located at Sikorsky Memorial Airport (Hangars 3
and 4).
HARTFORD
6. Operating Agreement dated as of May 2, 1996, between the State of
Connecticut Department of Transportation and Brainard Airport Services,
Inc. d/b/a Million Air for management of Air One, Inc. and Charter Oak
Aviation, Inc. at Hartford-Brainard Airport.
7. Lease and Operating Agreement dated as of October 29, 1985, between the
State of Connecticut, Department of Transportation and Air One, Inc., as
amended on June 26,
Sched. 5.5-1
1991, and November 10, 1997, for property located at Hartford-Brainard
Airport. Brainard was assigned Air One's obligations under a January 11,
1999, Purchase Agreement.
8. Lease and Operating Agreement dated as of September 10, 1990, between the
State of Connecticut, Department of Transportation and Charter Oak
Aviation, Inc., as amended on February 26, 1991, July 21, 1995, and
October 6, 1999, for property located at Hartford-Brainard Airport.
PHILADELPHIA AND NORTHEAST PHILADELPHIA
9. Lease Development, & Operating Agreement dated as of December 8, 1998,
between City of Philadelphia and Atlantic Aviation Flight Support, Inc.
(f/k/a Atlantic Aviation PHL, Inc.), as amended on May 27, 1999, July 1,
1999, October 6, 1999, September 29, 2000, September 6, 2001, and
_________, 2001 (Sixth Amendment), for properties located at Philadelphia
International Airport and Northeast Philadelphia Airport.
HOBBY
10. Lease Agreement dated August 25, 1970, between City of Houston and
Atlantic Aviation Corporation, as amended and supplemented on February 3,
1972, July 19, 1972, October 19, 1976, February 12, 1979, and November 2,
2000 (countersigned date), for property located at William P. Hobby
Airport.
11. Lease Agreement dated as of November 9, 1993, between City of Houston and
Atlantic Aviation Corporation, as amended on February 6, 1997, for
property located at William P. Hobby Airport.
FARMINGDALE
12. Lease Agreement dated November 19, 1987, between the New York State
Department of Transportation and Flightways of Long Island, Inc., as
amended on January 21, 1992, October 15, 1992, September 30, 1993, May 10,
1993, February 11, 1994, and December 24, 1997, for property located at
Republic Airport.
NEW ORLEANS INTERNATIONAL AIRPORT
13. Lease dated September 7, 1977, between City of New Orleans and General
Aviation Corporation, as amended on November 5, 1986, for property located
at New Orleans International Airport.
14. FBO Lease and Use Agreement dated effective March 23, 2001, between New
Orleans Aviation Board and General Aviation, L.L.C., successor by merger
to General Aviation Corporation, as amended on March 22, 2002, for
property located at New Orleans International Airport.
NEW ORLEANS LAKEFRONT
15. Contract of Lease dated February 1, 1995, between Board of Commissioners
of Orleans Levee District and General Aviation of New Orleans, Inc. for
property located at New Orleans Lakefront Airport.
16. [Reserved.]
Sched. 5.5-2
PALM SPRINGS
17. Indenture of Lease and Aeronautical Concession Agreement effective
December 15, 1981 between the City of Palm Springs, California and Jimsair
Aviation Services, Inc., as modified by that certain Amendment No. 1 dated
September 18, 1986, as further modified by that certain Option Agreement
dated September 18, 1986 between the City of Palm Springs and Jimsair
Aviation Services, Inc., as further modified by that certain Consent to
Assignment and Encumbrance of Ground Lease Interest dated March 17, 1994
among the City of Palm Springs and Dorfinco Corporation and Air Sources,
Inc., as further modified by that certain Estoppel and Consent Regarding
Lease and Option to Lease No. 1764, dated as of December 1, 2004, among
the City of Palm Springs, Palm Springs FBO Two LLC, a Delaware limited
liability company, d.b.a. Million Air Palm Springs, and North America
Capital Holding Company,
JOHN WAYNE AIRPORT -- NEWPORT JET CENTER
18. FBO Lease dated October 24, 1994, by and between County of Orange and Pan
Western, Ltd., a California limited partnership, as amended by that
certain First Amendment to Ground Lease between County of Orange and Pan
Western, Ltd., dated November 19, 1996, that certain Second Amendment to
FBO Lease between County of Orange and Pan Western, Ltd., dated March 24,
1998, that certain Third Amendment to FBO Lease dated March 24, 1998
executed by the County of Orange as Lessor and Pan Western, Ltd., as
Tenant, that certain Fourth Amendment to FBO Lease dated December 19, 2002
executed by the County of Orange as Lessor and Newport FBO Two, LLC, as
Tenant, and that certain Fifth Amendment to FBO Lease dated January 14,
2005, executed by the County of Orange as Lessor and Newport FBO Two, LLC,
as Tenant.
MCCARRAN INTERNATIONAL AIRPORT
19. Lease Agreement, dated June 18, 1996, the County of Clark, a political
subdivision of the State of Nevada, and Eagle Aviation Resources Ltd., a
Nevada limited liability company.
PITTSBURGH INTERNATIONAL AIRPORT
20. Lease Agreement (No. 38925), dated January 28, 1998, by and between the
County of Allegheny and American Port Services, Inc.; amended by Amendment
Agreement, dated July 12, 1999; amended by Second Amendment, dated
September 13, 2001; and further amended by Letter, dated August 24, 2000,
from the County of Allegheny, revising Exhibit A to confirm surveyed lease
areas; as assigned by Assignment Agreement dated November 5, 2002 by and
between Alleghany County Airport Authority, American Port Services Inc and
Macquarie Aviation north America 2 Inc. (Pittsburgh)
21. License Agreement (No. 38926), dated January 28, 1998, by and between the
County of Allegheny, as licensor, and American Port Services, Inc., as
licensee; as assigned by Assignment Agreement dated November 5, 2002 by
and between Alleghany County Airport Authority, American Port Services Inc
and Macquarie Aviation north America 2 Inc. (Pittsburgh)
Sched. 5.5-3
LOUISVILLE INTERNATIONAL AIRPORT
22. Fixed Base Operator Lease and Concession Agreement, dated March 20, 1996,
by and between the Regional Airport Authority of Louisville and Jefferson
County and Johnson Controls World Services, Inc., as amended by First
Amendment, dated October 14, 1996, to the Fixed Base Operator Lease and
Concession Agreement dated March 20, 1996, by and between the Regional
Airport Authority of Louisville and Jefferson County and Johnson Controls
World Services, Inc.; assigned by the Assignment of Contract, Amendment
and Consent, dated July 30, 1997, by and among the Regional Airport
Authority of Louisville and Jefferson County, Johnson Controls World
Services, Inc. and American Port Services, Inc.; and further amended by
Letter Agreement, dated July 10, 2001, by and between Regional Airport
Authority of Louisville and Jefferson County and American Port Services,
Inc.; and assigned by Consent dated November 1, 2002, by the Regional
Airport Authority of Louisville and Jefferson County in favour of American
Port Services Inc and Macquarie Aviation North America 2 Inc. (Louisville)
GULFPORT-BILOXI REGIONAL AIRPORT
23. Amended Fixed Base Operator Lease with U.S. Aviation Corporation, dated
May 1, 1991, by and between the Gulfport-Biloxi Regional Airport Authority
and U.S. Aviation Corporation, which amends and restates the lease, dated
February 8, 1980, entered into by the Gulfport-Biloxi Regional Airport
Authority with Aero International, Inc.; assigned by Assignment and
Assumption of Leases, dated as of September 18, 2000, between U.S.
Aviation, Inc. as assignor and American Port Services, Inc., as assignee;
and consented to by Consent to Assignment and Estoppel Certificate, dated
September 15, 2000, by the Gulfport-Biloxi Regional Airport Authority to
and in favor of U.S. Aviation, Inc. and American Port Services, Inc. and
assigned by Assignment and Assumption of Leases dated November 5, 2002 by
and between American Port Services Inc and Macquarie Aviation North
America 2 Inc. (Gulfport)
24. Fixed Base Operator Lease, dated September 3, 1997, between the
Gulfport-Biloxi Regional Airport Authority and U.S. Aviation Corporation;
assigned by Assignment and Assumption of Leases, dated as of September 18,
2000, by and between U.S. Aviation, Inc., as assignor to American Port
Services, Inc., as assignee; and consented to by Consent of Assignment and
Estoppel Certificate, dated September 15, 2000, by the Gulfport-Biloxi
Regional Airport Authority to and in favor of American Port Services, Inc.
and U.S. Aviation, Inc. and assigned by Assignment and Assumption of
Leases dated November 5, 2002 by and between American Port Services Inc
and Macquarie Aviation North America 2 Inc. (Ramp Lease, Gulfport)
25. Bare Ground Lease for Fuel Farm, dated March 5, 1999, between the
Gulfport-Biloxi Regional Airport Authority and U.S. Aviation Corporation;
assigned by Assignment and Assumption of Leases, dated as of September 18,
2000, by and between U.S. Aviation, Inc., as assignor to American Port
Services, Inc., as assignee; and consented to by Consent of Assignment and
Estoppel Certificate, dated September 15, 2000, by the Gulfport-Biloxi
Regional Airport Authority to and in favor of American Port Services,
Sched. 5.5-4
Inc. and U.S. Aviation, Inc. and assigned by Assignment and Assumption of
Leases dated November 5, 2002 by and between American Port Services Inc
and Macquarie Aviation North America 2 Inc. (Fuel Farm Lease, Gulfport)
BURLINGTON AIRPORT
26. Lease between the City of Burlington, Airport Realty Associates and Valley
Air Services, Inc., dated February 19, 1986; modified by Modification of
Lease, dated September 13, 1989; further modified by Second Modification
of Lease Agreement, dated September 13, 1989; further modified by Third
Modification of Lease Agreement, dated January 11, 1992; assigned to HCA
Airport Realty, LLC by a Deed of Transfer and Assignment of Leases, dated
March 14, 1997; sublet to Valley Air Services, Inc. by Sublease, dated
March 14, 1997, between HCA Airport Realty, LLC and Valley Air Services,
Inc.; assignment and sublet consented to by Consent to Assignment and
Assumption of Leases, dated March 14, 1997; amended by Letter Agreement,
dated March 14, 1997, by and among the City of Burlington, HCA Airport
Realty, LLC and Valley Air Services, Inc.; further modified by Fourth
Modification of Lease Agreement, dated November 25, 1997; further assigned
by Assignment of Leases and Agreement, dated July 2, 2001, by and between
HCA Airport Realty, LLC, Valley Air Services, Inc. and HCA Aircraft
Services, LLC, as assignors, Amports Avcenters, Inc., as assignee and
American Port Services, Inc.; and assignment consented to and lease
further modified by Consent to Assignment and Assumption of Leases and
Lease Amendment Agreement, dated July 2, 2001, by and among the City of
Burlington, American Port Services, Inc., Amports Avcenters, Inc., Valley
Air Services, Inc., HCA Airport Realty, LLC and HCA Aircraft Services,
LLC.; as guaranteed by Macquarie Airports North America Inc under
Termination and Release Agreement dated October 28, 2002 by the City of
Burlington, Vermont in favor of American port Services Inc and Macquarie
Airports North America Inc. (Heritage East Lease, Burlington)
27. Fixed Base Operator and Lease Agreement between the City of Burlington and
HCA Aircraft Services, LLC, dated November 25, 1997; sublet to Valley Air
Services, Inc. by Sublease, dated as of November 25, 1997; modified by
Letter Agreement, dated September 14, 1998, by and among the City of
Burlington, HCA Airport Realty, LLC, HCA Aircraft Services, LLC, Valley
Air Services, Inc., Valet Air Services, Inc., Neagley & Chase Construction
Company and Burlington Community Development Corporation; assigned by
Assignment of Leases and Agreement, dated July 2, 2001, by and among
American Port Services, Inc., Amports Avcenters, Inc., as assignee, Valley
Air Services, Inc., HCA Airport Realty, LLC and HCA Aircraft Services,
LLC, as assignors; and assignment consented to and lease further modified
by Consent to Assignment and Assumption of Leases and Lease Amendment
Agreement, dated July 2, 2001, by and among the City of Burlington,
American Port Services, Inc., Amports Avcenters, Inc., Valley Air
Services, Inc., HCA Airport Realty, LLC and HCA Aircraft Services, LLC. ;
as guaranteed by Macquarie Airports North America Inc under Termination
and Release Agreement dated October 28, 2002 by the City of Burlington,
Vermont in favor of American port Services Inc and Macquarie Airports
North America Inc. (Heritage West Lease, Burlington)
Sched. 5.5-5
28. Lease Agreement between Burlington Community Development Corporation and
HCA Aircraft Services, LLC, dated November 25, 1997; Subordination,
Attornment and Non-Disturbance Agreement, dated November 25, 1997, by and
among The Howard Bank, N.A., HCA Aircraft Services, LLC and Burlington
Community Development Corporation; sublet to Valley Air Services, Inc. by
Sublease, dated as of November 25, 1997; modified by Letter Agreement,
dated September 14, 1998, by and among the City of Burlington, HCA Airport
Realty, LLC, HCA Aircraft Services, LLC, Valley Air Services, Inc., Valet
Air Services, Inc., Neagley & Chase Construction Company and Burlington
Community Development Corporation; assigned by Assignment of Leases and
Agreement, dated July 2, 2001, by and among American Port Services, Inc.,
Amports Avcenters, Inc., as assignee, Valley Air Services, Inc., HCA
Airport Realty, LLC and HCA Aircraft Services, LLC, as assignors; and
assignment consented to and further modified by Consent to Assignment and
Assumption of Leases and Lease Amendment Agreement, dated July 2, 2001, by
and among the City of Burlington, American Port Services, Inc., Amports
Avcenters, Inc., Valley Air Services, Inc., HCA Airport Realty, LLC and
HCA Aircraft Services, LLC, and by Letter Agreement, dated July 3, 2001,
by and among The Howard Bank, N.A., HCA Aircraft Services, LLC, Burlington
Community Development Corporation and Amports Avcenters, Inc. ; as
guaranteed by Macquarie Airports North America Inc under Termination and
Release Agreement dated October 28, 2002 by the City of Burlington,
Vermont in favor of American port Services Inc and Macquarie Airports
North America Inc. (North Hangar Lease, Burlington)
NEW CASTLE AIRPORT
29. Lease Agreement, dated September 25, 1987, by and between New Castle
County and Dawn Aeronautics, Inc., assigned by Assignment of Lease, dated
November 12, 1996, by and between Dawn Aeronautics, Inc., as assignor to
Dawn Aero, Inc., as assignee; and Memorandum of Lease, dated August 10,
1998, by and between Delaware River and Bay Authority and Dawn Aero, Inc.
(New Castle)
30. Lease Agreement, dated February 2, 1997, between The Delaware River and
Bay Authority, as lessor, and Dawn Aero, Inc, as lessee, as amended by
letter, dated June 26, 2002, confirming extension of the lease. (Brett
Road Lease, New Castle)
ATLANTIC CITY INTERNATIONAL AIRPORT
31. Management Agreement for the Operation of the Atlantic City International
Airport, dated August 20, 2001, by and between South Jersey Transportation
Authority and American Port Services, Inc. ; and assigned by Consent dated
October 22, 2002, by the South Jersey Transportation Authority in favour
of American Port Services Inc and Macquarie Aviation North America 2 Inc.
Sched. 5.5-6
REPUBLIC AIRPORT
32. Management and Operation of Republic Airport Agreement, dated April 1,
2000, between the People of the State of New York and American Port
Services, Inc., as supplemented by Supplemental Agreement No. 1, effective
as of April 1, 2001, between the People of the State of New York, acting
by and through the Commissioner of Transportation and the Department of
Transportation, and American Port Services, Inc.; and as further
supplemented by Supplemental Agreement No. 2, effective as of April 1,
2002, between the People of the State of New York, acting by and through
the Commissioner of Transportation and the Department of Transportation,
and American Port Services, Inc; as assigned by Consent dated September
13, 2002, by the The People of the Sate of New York acting by and through
the Department of Transportation in favour of American Port Services Inc
and Macquarie Aviation North America 2 Inc.
33. Engineering and Capital Project Management Agreement, dated April 1, 2000,
between the People of the State of New York, acting by and through the
Department of Transportation and American Port Services, Inc.; as
supplemented by Supplemental Agreement No. 1 for Capital Facilities
Development, dated April 1, 2001, between the People of the State of New
York acting by and through the Commissioner of Transportation and the
Department of Transportation and American Port Services, Inc.,
Supplemental Agreement No. 2 for Capital Facilities Development, effective
as of October 24, 2001, between the People of the State of New York,
acting by and through the Commissioner of Transportation and the
Department of Transportation, and American Port Services, Inc. as further
supplemented by Supplemental Agreement No. 3 for Capital Facilities
Development, effective as of February 1, 2002, between the People of the
State of New York, acting by and through the Commissioner of
Transportation and the Department of Transportation, and American Port
Services, Inc. and as further supplemented by Supplemental Agreement No. 4
for Capital Facilities Development, effective as of May 1, 2002, between
the People of the State of New York, acting by and through the
Commissioner of Transportation and the Department of Transportation, and
American Port Services, Inc. ; as assigned by Consent dated September 13,
2002, by the The People of the Sate of New York acting by and through the
Department of Transportation in favour of American Port Services Inc and
Macquarie Aviation North America 2 Inc.; as further supplemented by
Supplemental Agreement No. 5 for Capital Facilities Development, effective
as of March 28, 2003, between the People of the State of New York, acting
by and through the Commissioner of Transportation and the Department of
Transportation, and Macquarie Aviation North America 2, Inc.; as extended
by Contract Extension Memorandum dated December 3, 2004 by and between the
People of the State of New York, acting by and through the Commissioner of
Transportation and the Department of Transportation, and Macquarie
Aviation North America 2, Inc.; as further supplemented by Supplemental
Agreement No. 6 for Capital Facilities Development, effective as of August
8, 2005, between the People of the State of New York, acting by and
through the Commissioner of Transportation and the Department of
Transportation, and Macquarie Aviation North America 2, Inc.; as further
supplemented by Supplemental Agreement No. 7 for Capital Facilities
Development, effective as of September 19, 2005, between the People of the
State of New York, acting
Sched. 5.5-7
by and through the Commissioner of Transportation and the Department of
Transportation, and Macquarie Aviation North America 2, Inc.; as further
supplemented by Supplemental Agreement No. 8 for Capital Facilities
Development, effective as of October 12, 2005, between the People of the
State of New York, acting by and through the Commissioner of
Transportation and the Department of Transportation, and Macquarie
Aviation North America 2, Inc.; and as further supplemented by
Supplemental Agreement No. 9 for Capital Facilities Development, effective
as of [date pending], between the People of the State of New York, acting
by and through the Commissioner of Transportation and the Department of
Transportation, and Macquarie Aviation North America 2, Inc.
TETERBORO AIRPORT
34. Agreement to Perform Operations and Maintenance at the Port Authority
Teterboro Airport, dated September 15, 2000, between the Port Authority of
New York and New Jersey and American Port Services, Inc., as supplemented
by Letter, dated October 7, 2002, from Cile Pace to Oswin Moore increasing
Management Fee thereunder. ; as assigned by Assignment with Assumption and
Consent Agreement dated November 27, 2002, by and among The Port Authority
of New York and New Jersey, American Port Services Inc and Macquarie
Aviation North America 2 Inc.
TWEED - NEW HAVEN AIRPORT
35. Management Agreement for the Operation of Tweed-New Haven Airport, dated
July 1, 1998, between the Tweed-New Haven Airport Authority and American
Port Services, Inc.; as assigned by Consent and Agreement dated September
18, 2002, by and between Tweed-New Haven Airport Authority, American Port
Services Inc and Macquarie Aviation North America 2 Inc.
WESTCHESTER COUNTY AIRPORT
36. Contract for the Management and Operation of Westchester County Airport,
dated June 26, 1996, between the County of Westchester and Johnson
Controls World Services, Inc., as assigned by the Assignment Agreement,
dated July 1997, between the County of Westchester, Johnson Controls World
Services, Inc. and American Port Services, Inc.; as assigned by Consent
and Agreement dated December 12, 2002, by and between County of
Westchester, American Port Services Inc and Macquarie Aviation North
America Inc.
ALBANY INTERNATIONAL AIRPORT
37. Airport Management Services Agreement dated July 13, 2005 by and between
the Albany County Airport Authority and Macquarie Aviation North America
2, Inc.
34TH STREET HELIPORT
38. Operating Agreement between New York City Economic Development Corporation
and Macquarie Aviation North America, Inc. a/k/a Avports, dated as of
September 1, 2005
Sched. 5.5-8
Schedule 5.7
to Loan Agreement
SCHEDULE 5.7
LITIGATION AND PROCEEDINGS
1. During May 2001, Brant Motorsports, Inc. ("Brant") filed a lawsuit against
Atlantic Aviation Corporation ("Atlantic") in the Court of Common Pleas of
Blair County, Pennsylvania, case number 200 1-GN3237, for non payment of
fees for the sponsorship of a race car owned and operated by Brant.
Atlantic has responded to the lawsuit and is in the discovery process.
Atlantic has a $250,000 reserve for this matter.
2. Bridgeport Airport Services, Inc. ("Bridgeport") has filed a declaratory
judgment action against the Town of Stratford, Connecticut in January
2003. The action seeks a declaration that Bridgeport is not responsible
for payment of real property taxes to the Town of Stratford because it is
not the owner of the property, and further, that the owner of the property
is tax exempt.
3. On June 19, 2002 Dawn Macvicar as Administrator for the estate of Gregory
Macvicar filed a lawsuit against Million Air Interlink, Executive, and
several other defendants in the Supreme Court of the State of New York,
County of New York Index No. 110136/02. This case was filed as a result of
an aircraft crash on May 21, 2000. Executive is being defended by its
insurance carrier in this matter and has responded to the lawsuit. The
plaintiff has agreed to settle the case, which settlement will result in
no additional liability to Executive. This settlement agreement is subject
to approval by the Supreme Court of the State of New York.
4. A second lawsuit related to the same matter in Item 3 was filed by Cana
Basat Colon as Administrator for the estate of Can Basat in the Supreme
Court of the State of New York, County of New York. Executive is being
defended by its insurance carrier in this matter and has responded to the
lawsuit. The plaintiff has agreed to settle the case, which settlement
will result in no additional liability to Executive. This settlement
agreement is subject to approval by the Supreme Court of the State of New
York.
5. On February 5, 2005, a Challenger aircraft crashed during take off at
Teterboro airport. The aircraft skidded off the end of the runway, through
a fence, across several lanes of traffic and came to rest in a warehouse.
Certain individuals allege injuries sustained as a result of this accident
and have filed actions naming several defendants, including one or more
subsidiaries of the Borrower.
6. Atlantic received a letter dated July 8, 1999, from the attorney for
Arrendadora International S.A. de C.V. ("Arrendadora") claiming that
Atlantic had wrongly levied upon and converted a 1967 Learjet Model 24XR
owned by Arrendadora, which had been housed at Atlantic's facility at
Hobby Airport in Houston. By letter dated September 29, 1999,
Arrendadora's attorney threatened litigation in this matter if it were not
resolved.
Sched. 5.7-1
By letter from its attorney dated October 11, 1999, Atlantic denied
liability and threatened a counterclaim for non-payment of sums owed
relating to the storage of the aircraft. Atlantic continues to dispute
this claim. Litigation was filed in Harris County Texas by Arrendadora on
July 13, 2001. Atlantic has responded to the lawsuit and is in the
discovery process.
7. On June 4, 2003, AJM Contractors, Inc. filed a complaint against E.P.
Guidi, Inc., Atlantic, Port of New York Authority, et al., Docket Number
BER-L-004048-03, pending in the Superior Court of New Jersey Law Division,
Bergen County. This lawsuit is by a subcontractor for additional funds
allegedly due in connection with construction work performed at Atlantic's
FBO located at Teterboro Airport, New Jersey. The subcontractor seeks the
amount of $206,439.24. The lawsuit is being handled by counsel for the
general contractor, E.P. Guidi, Inc. on behalf of both the general
contractor and Atlantic.
8. The Town of Babylon's petition seeking an injunction barring completion of
a hangar facility at Republic Airport was dismissed in the action entitled
Town of Babylon v. New York State Dep't of Transp., Index No. 25100/04.
The Town of Babylon has appealed that ruling and the appeal is currently
being briefed by the parties.
9. Complaint filed on January 25, 2005, by Corporacion Sambil naming Eagle
Canyon Airlines d/b/a Las Vegas Executive Air Terminal as a Defendant
District Court, Clark County, Nevada
Case No. A498583
Department No. 13
10. The following individuals have asserted claims against Macquarie Airports
North America Inc. and/or its subsidiaries for injuries allegedly suffered
as a result of accidents on property operated by Macquarie Airports North
America Inc. and/or its subsidiaries:
Florence Jasudowicz
Dorothy Y. Wender
Jeanne P. Turnow
Alfred J. Richards/Gloria R. Richards
Keith Feldman/Ethel Feldman
Emil Miele/Sandra Miele
Mildred Kay Shotsberger/John Shotsberger
Rosaleen Sorento
Carol Mendalski/Eugene Mendalski
Rose Cicatelil
Sched. 5.7-2
Schedule 5.8
to Loan Agreement
SCHEDULE 5.8
LEASES
FBO Leases
See items set forth on Schedule A-1.
Management Contracts
See items set forth on Schedule A-2.
Other Real Property Agreements
Executive Air Support:
1. [Reserved]
2. Hangar Facilities Lease dated as of January 30, 1987, between General
Aviation Corporation, as lessor, and Freeport-McMoRan Inc., as lessee, for
a portion of property located at New Orleans International Airport.
3. Office Rental Agreement - Republic Airport dated November 1, 2000, between
Airlink, Inc. and Flightways of Long Island, Inc. d/b/a Million Air.
4. Hangar Development Operation and Use Agreement dated January 4, 2004,
between Talon Air Services, LLC, Talon Air, Inc. and Flightways of Long
Island, Inc.
5. Lease Agreement between Aero New Orleans, LLC and General Aviation, LLC
commencing on January 1, 2003, for property located at New Orleans
International Airport.
6. Lease Agreement dated July 1, 2001, between CSC Transport, Inc. and
Flightways of Long Island, Inc. d/b/a Million Air.
7. Lease Agreement dated February 21, 2000, between Flightways of Long
Island, Inc. d/b/a Million Air and East Coast Aviation Services, Ltd.
d/b/a Executive Airlines (now assigned to Michael S. Peragine).
8. Use and Occupancy Agreement dated April 1, 2003, between Bridgeport
Airport Services, Inc. and Privatair.
9. Use and Occupancy Agreement dated July 1, 2002, between Bridgeport Airport
Services, Inc. and Privatair.
10. Use and Occupancy License Agreement dated February 1, 2001, between
Atlantic Aviation Flight Support, Inc. and Hortman Aviation, Inc.
Sched. 5.8-1
11. Use and Occupancy Agreement dated October 1, 2002, between Atlantic
Aviation Corporation and Verizon Services Corp.
12. Use and Occupancy Agreement dated February 28, 2003, between Atlantic
Aviation Corporation and Atlantic Aviation Flight Services, Inc.
13. Use and Occupancy Agreement dated March 1, 2003, between Atlantic Aviation
Corporation and Kelso Aviation.
14. Use and Occupancy Agreement dated June 5, 2002, between Atlantic Aviation
Corporation and Flight Options.
15. Use and Occupancy Agreement dated March 1, 2002, between Atlantic Aviation
Corporation and Loral Spacecom Corp.
16. Use and Occupancy Agreement dated March 1, 2003, between Atlantic Aviation
Corporation and Pro Flite.
17. Use and Occupancy Agreement dated March 1, 2003, between Atlantic Aviation
Corporation and 711 Air Corporation.
18. Use and Occupancy Agreement dated November 14, 2000, between Atlantic
Aviation Corporation and Sony Aviation, Inc.
General Aviation:
1. Leaseback Agreement between Air Sources, Inc. and Jacqueline Nightingale
as Trustee of the Leon R. Nightingale Family Trust dated June 2, 1998.
Louisville (Andalex):
1. Lease and Security Agreement Assignment and Assumption Agreement and
General Instrument of Transfer dated 8th September, 2004 by and between
Andalex Resources, Inc., a Delaware Corporation and Macquarie Aviation
North America 2, Inc. d/b/a AvPorts, a Delaware Corporation.
2. Lease dated 12th day of December, 1995, by and between Regional Airport
Authority of Louisville and Jefferson County, a body politic and corporate
existing pursuant to KRS Chapter 183, and Andalex Resources, Inc., a
Delaware corporation.
3. First Amendment to Lease is dated 8th day of September, 2004 by and
between the Louisville Regional Airport Authority, formerly known as The
Regional Airport Authority, formerly known as The Regional Airport
Authority of Louisville and Jefferson County, a body politic and corporate
and Macquarie Aviation North America 2, Inc., d/b/a Avports.
4. Assignment & Assumption Agreement dated the 8th day of September, 2004, by
and between The Louisville Regional Airport Authority f/k/a the Regional
Airport Authority
Sched. 5.8-2
of Louisville and Jefferson County, a body politic and corporate, and
Macquarie Aviation North America 2, Inc. d/b/a Avports, a Delaware
corporation.
5. Consent to Lease and Security Agreement Assignment and Assumption
Agreement and General Instrument of Transfer and Partial Release dated
September 8, 2004, by and among Andalex Resources, Inc. a Delaware
corporation, Macquarie Aviation North America 2, Inc., a Delaware
corporation, and the Louisville Regional Airport Authority.
6. Acknowledgement and Confirmation FBO Agreement of Extension between
Louisville Regional Airport Authority and Macquarie Aviation North America
2, Inc.
7. Lease and Security Agreement Assignment and Assumption Agreement and
General Instrument of Transfer dated September 8, 2004, by and between
Andalex Resources, Inc., a Delaware corporation, and Macquarie Aviation
North America 2, Inc. d/b/a Avports, a Delaware corporation.
Louisville (Republic):
1. All Agreements pertaining to the Republic Airline, Inc. transaction, by
and between Republic, Macquarie Aviation North America 2, Inc. and the
Louisville Regional Airport Authority, dated September 30, 2003 and
including the Hangar and Office Complex Participation Agreement; the
Hangar and Complex Lease Agreement; the Hangar and Office Sublease
Agreement; the Consent to Hangar and Office Sublease Agreement; the
Services an, Supply and Hangar 2 Sublease Agreement and Consent; the
Amendment to FBO Lease and Concession Agreement and the Republic Permit.
Pittsburgh:
1. By and between Macquarie Aviation North America 2 Inc. d/b/a AvPorts,
d/b/a FBO AvCenter Pittsburgh, a Delaware corporation, and Corporate Air
LLC a Pennsylvania corporation.
Wilmington:
1. Lease dated on or about April 26, 2005 between the Delaware River and Bay
Authority and ILG AvCenter, Inc. for premises known as 600 Brett Road at
New Castle County Airport, Delaware.
Corporate Leases
Executive Air Support Office:
1. Lease Agreement dated as of December 19, 2001, between CB Parkway Business
Center IV, Ltd. and Executive Air Support, Inc., as amended on March 15,
2002 and further
Sched. 5.8-3
amended on January 10, 2005 and May 26, 2006, for office space located at
6504 International Parkway, Suite, 1100, Plano, Texas.
Teterboro Administration Office:
1. Use and Occupancy Agreement (File N. TA-306), dated December 1, 1999
between Johnson Controls World Services Inc. and American Port Services
Inc., as consented to by Consent Agreement, dated 15th day of December
1999 by and among Johnson Controls World Services Inc., The Port Authority
of New York and New Jersey, and American Port Services Inc.; as
supplemented by Supplemental Agreement, dated August 23, 2000, by and
between The Port Authority of New York and New Jersey and American Port
Services, Inc., as assigned by Assignment with Assumption and Consent
Agreement, dated November 27, 2002, by and among The Port Authority of New
York and New Jersey, American Port Services, Inc., and Macquarie Aviation
North America 2, Inc; and as extended by Letter Agreement, dated November
7, 2003, by and between The Port Authority of New York and New Jersey and
Macquarie Aviation North America 2, Inc.
World Trade Center Corporate Office:
1. Lease Agreement dated April 14, 2004, by and between Maryland Port
Administration and Macquarie Aviation North America 2, Inc.
Sched. 5.8-4
Schedule 5.10
to Loan Agreement
SCHEDULE 5.10
EXCEPTIONS AS TO LIENS
Each item set forth on Schedule 5.5.
Each item set forth on Schedule 6.2(b).
Schedule 5.13
to Loan Agreement
SCHEDULE 5.13
EMPLOYEE BENEFIT PLANS
(a) A subsidiary of HGC Holdings LLC maintains or contributes to the Pension
Plan for the Classified Employees of Gasco, Inc.
Loan Parties contribute to union benefit plans that provide welfare
benefits to union employees located at Republic Airport and Atlantic City
Airport.
Executive sponsors a retiree medical and life insurance plan available to
certain employees for Atlantic Aviation Corporation. Currently, the plan
is funded as required to pay benefits and, at December 31, 2004 and 2003,
the plan had no assets. Executive accounts for postretirement healthcare
and life insurance benefits in accordance with SFAS No. 106, Employers'
Accounting for Postretirement Benefits Other Than Pensions. The
accumulated benefit obligation at December 31, 2004 and 2003, using an
assumed discount rate of 5.75% and 6%, was approximately $0.7 million and
$0.8 million, respectively, and the net periodic postretirement benefit
cost during 2004 and 2003 were $82,000 and $102,000, using an assumed
discount rate of 6% and 6.75% respectively. The post retirement benefit
cost was determined using January 1, 2004 and 2003 data. There have been
no changes in plan provisions during 2004 or 2003. For measurement
purposes, a 12% annual rate of increase in the per capita cost of covered
health care benefits was assumed for 2004 and assumed to decrease
gradually to 5% by 2013 and remain at that level thereafter.
Executive sponsors a Medicare Supplement Plan that is a premium payment
plan with six participants.
The provisions of certain employment contracts provide for limited periods
during which health care coverage is continued following termination of
the contracts.
(b) None
Sched. 5.10-1
(c) Loan Parties contribute to the International Association of Machinists
National Pension Fund for the benefit of union employees located at
Philadelphia International and Teterboro Airports.
Sched. 5.26
Schedule 5.15
to Loan Agreement
SCHEDULE 5.15
INTELLECTUAL PROPERTY
Trademark Applications
1. 78496654 (ATLANTIC, Classes 35, 37, 39, 43 and 45)*
2. 78496659 (ATLANTIC, Stylized, Classes 35, 37, 39, 43 and 45)*
3. 78496783 (A Design Mark, Classes 35, 37, 39, 43 and 45)*
4. 78496786 (ATLANTIC & A Design, Classes 35, 37, 39, 43 and 45)*
5. 78496770 (A ATLANTIC & Design, Classes 35, 37, 39, 43 and 45)*
* Provisionally refused by the United States Patent and Trademark Office.
Patents
U.S. Patent Number 4,783,025, Emergency Medical Service-Interior for
Aircraft dated November 8, 1988
Trade Names
General Aviation of New Orleans has registered the trade names "General
Lubricants" and "General Aviation of Louisiana" with the State of
Louisiana.
Eagle Aviation Resources, Ltd. has filed fictitious business names
"Atlantic - Las Vegas" and "Atlantic Aviation - Las Vegas" in Clark
County, Nevada.
Sched. 5.15-1
Schedule 5.18
to Loan Agreement
SCHEDULE 5.18
SUBSIDIARIES
EXECUTIVE AIR SUPPORT, INC.
State of Incorporation: Delaware
Shares Authorized: 30,000,000 shares of Common Stock, $.01 par value
20,000,000 shares of Preferred Stock, $.01 par value
Issued and Outstanding Stock: 1,895,684 shares of Common Stock owned by Borrower
18,508,784 shares of Series A Preferred Stock
owned by Borrower
ATLANTIC AVIATION HOLDING CORPORATION
State of Incorporation: Delaware
Shares Authorized: 300,000 shares of Common Stock, $.01 par value
1,000 shares of Preferred Stock, $.01 par value
Issued and Outstanding Stock: 10 shares of Common Stock owned by Executive
ATLANTIC AVIATION FLIGHT SUPPORT, INC.
State of Incorporation: Delaware
Shares Authorized: 1,000 shares of Common Stock, no par value
Issued and Outstanding Stock: 1,000 shares of Common Stock owned by Atlantic
Aviation Holding Corporation
ATLANTIC AVIATION PHILADELPHIA, INC.
State of Incorporation: Delaware
Shares Authorized: 1,000 shares of Common Stock, $.01 par value
Issued and Outstanding Stock: 100 shares of Common Stock owned by Atlantic
Aviation Holding Corporation
Sched. 5.18-1
ATLANTIC AVIATION CORPORATION
State of Incorporation: Delaware
Shares Authorized: 1,000 shares of Common Stock, $.01 par value
1,000 shares of Preferred Stock, $.01 par value
Issued and Outstanding Stock: 100 shares of Common Stock owned by Atlantic
Aviation Holding Corporation
FLIGHTWAYS OF LONG ISLAND, INC.
State of Incorporation: New York
Shares Authorized: 200 shares of Common Stock, no par value
Issued and Outstanding Stock: 200 shares of Common Stock owned by Executive
BRAINARD AIRPORT SERVICES, INC.
State of Incorporation: Connecticut
Shares Authorized: 20,000 shares of Common Stock, no par
value
Issued and Outstanding Stock: 100 shares of Common Stock owned by Executive
BRIDGEPORT AIRPORT SERVICES, INC.
State of Incorporation: Connecticut
Shares Authorized: 1,000 shares of Common Stock, $.01 par value
Issued and Outstanding Stock: 500 shares of Common Stock owned by Executive
CHARTER OAK AVIATION, INC.
State of Incorporation: Connecticut
Shares Authorized: 5,000 shares of Common Stock, no par value
Issued and Outstanding Stock: 200 shares of Common Stock owned by Executive
Sched. 5.18-2
FLI SUBSIDIARY, LLC
State of Formation: Delaware
Units Authorized: 1,000 Units
Issued and Outstanding Units: 1,000 Units owned by Flightways of Long Island, Inc.
AAC SUBSIDIARY, LLC
State of Formation: Delaware
Units Authorized: 1,000 Units
Issued and Outstanding Units: 1,000 Units owned by Atlantic Aviation Corporation
GENERAL AVIATION, L.L.C.
State of Formation: Louisiana
Units Authorized: 1,000 Units
Issued and Outstanding Units: 1,000 Units owned by Executive
GENERAL AVIATION OF NEW ORLEANS, L.L.C.
State of Formation: Louisiana
Units Authorized: 1,000 Units
Issued and Outstanding Units: 1,000 Units owned by Executive
GENERAL AVIATION HOLDINGS, LLC
State of Formation: Delaware
Units Authorized: 8,000,000 Units
Issued and Outstanding Units: 7,187,148 owned by Borrower
PALM SPRINGS FBO TWO LLC
State of Formation: Delaware
Units Authorized: 1,000
Issued and Outstanding Units: 1,000 Units owned by Borrower
Sched. 5.18-3
NEWPORT FBO TWO LLC
State of Formation: Delaware
Units Authorized: 1,000
Issued and Outstanding Units: 1,000 Units owned by General Aviation Holdings, LLC
EAGLE AVIATION RESOURCES, LTD.
State of Formation: Nevada
Units Authorized: 1,000
Issued and Outstanding Units: 1,000 Units owned by Borrower
MACQUARIE AIRPORTS NORTH AMERICA INC.
State of Incorporation: Delaware
Shares Authorized: 1,000 shares of Common Stock, $.01 par value
Issued and Outstanding Stock: 30 shares of Common Stock owned by Borrower
MACQUARIE AVIATION NORTH AMERICA INC.
State of Incorporation: Delaware
Shares Authorized: 1,000 shares of Common Stock, $.01 par value
Issued and Outstanding Stock: 30 shares of Common Stock owned by
Macquarie Airports North America Inc.
MACQUARIE AVIATION NORTH AMERICA 2 INC.
State of Incorporation: Delaware
Shares Authorized: 1,000 shares of Common Stock, $.01 par value
Issued and Outstanding Stock: 30 shares of Common Stock owned by Macquarie
Airports North America Inc.
Sched. 5.18-4
ILG AVCENTER, INC.
State of Incorporation: Delaware
Shares Authorized: 1,000 shares of Common Stock, $.01 par value
Issued and Outstanding Stock: 203 shares of Common Stock owned by
Macquarie Aviation North America 2 Inc.
BTV AVCENTER, INC.
State of Incorporation: Delaware
Shares Authorized: 5,000 shares of Common Stock, $.01 par value
Issued and Outstanding Stock: 100 shares of Common Stock owned by
Macquarie Aviation North America 2 Inc.
Sched. 5.18-5
Schedule 5.21
to Loan Agreement
SCHEDULE 5.21
CONTRACTS
See items set forth on Schedule A-3
See items set forth on Schedule 5.8
Operating Leases - $150,000 or More in Aggregate Commitments
MIDWAY
1. Lease Agreement #4109815-001 dated October 15, 2000, by and between
Atlantic Aviation Flight Support, Inc. and GE Capital relating to 2001
Rampmaster Fuel Truck
FARMINGDALE
2. Lease Agreements (Garsite Unit #3617 and #3615) dated March 7, 2002, by
and between Atlantic Aviation Flight Support, Inc. and Aviation Equipment
Company relating to two 2002 International 4900 Fuel Trucks
Other Capital Leases
JOHN WAYNE
1. FBO Fuel Service and Support Agreement between Air Petro Corporation and
Newport Beach FBO 2, LLC dba Newport Jet Center, dated May 1, 2004.
2. Master Lease Agreement Refuelers between Air Petro Corporation and Newport
Beach FBO 2, LLC dba Newport Jet Center, dated April 29, 2004.
Material Contracts - $150,000 or More in Aggregate Commitments
1. Agreement Between Atlantic Aviation PHL, INC. and International
Association Of Machinists And Aerospace Workers, AFL-CIO, Maintenance and
Service and Office and Clerical Employees, Effective June 16, 2001. This
agreement expired June 15, 2004. The terms of this agreement have been
extended until June 15, 2007, and amended.
2. Agreement Between Atlantic Aviation Corporation (Teterboro, New Jersey)
and International Association Of Machinists And Aerospace Workers,
AFL-CIO, Maintenance and Service and Office and Clerical Employees,
Effective June 16, 2001. This agreement expired June 15, 2004. The terms
of this agreement have been extended until June 15, 2007, and amended.
3. Aviation Fuel Tank Farm Operating Agreement dated September 1, 2003,
between ChevronTexaco Global Aviation and Atlantic Aviation Corporation.
Sched. 5.21-1
4. Airport Dealer Supply Contract dated July 24, 2002, between Chevron Texaco
Global Aviation and Executive Air Support, Inc.
5. Matco System Access Agreement dated February 18, 2002, between Midway
Airlines' Terminal Consortium and Atlantic Aviation, Inc.
6. Encompass Card Program Agreement dated December 10, 2002, between American
Express Incentive Services, L.L.C. and Executive Air Support, Inc.
7. Agreement dated December 12, 2002, between Executive Air Support, Inc. and
American Express Incentive Services, L.L.C. for "ebility."
8. FlightExplorer Sales Order dated May 1, 2003, between Atlantic Aviation
and Flight Explorer.
9. Agreement with Addendum dated September 1, 2002, between Atlantic Aviation
and WSI Pilotbrief Services.
10. Agreement Addendum dated February 19, 2002, between Executive Air Support,
Inc. and Amstat Corporation.
11. Master Fixed Base Operator (FBO) Agency Agreement dated November 18, 2002,
between Executive Air Support and The Hertz Corporation; renewed effective
November 19, 2005.
12. Employment/severance agreements with: Louis T. Pepper and John Santomauro.
13. Employment/severance agreements between Macquarie Aviation North America
2, Inc on the one hand and on the other individually with Oswin E. Moore,
Clive R. P. Lowe, John Harden, Charles W. Kurtz, and George Bacigalupo.
14. [Reserved]
15. On or about July 13, 2004, Atlantic Aviation Corporation entered into a
Termination Agreement with the City of Philadelphia Department of
Commerce, Division of Aviation relating to the cleanup of the Tinicum fuel
farm at Philadelphia International Airport.
16. [Reserved]
17. Data Center Hosting Agreement between SBC Internet Services, Inc. and
Executive Air Support, Inc.
18. Data Center Hosting Agreement between SBC Internet Services, Inc. and
Executive Air Support, Inc.
19. Airport Dealer Supply Contract dated July 24, 2002, between Chevron Texaco
Global Aviation and Executive Air Support, Inc.
20. FBO Fuel Service and Support Agreement between Air Petro Corporation and
Newport Beach FBO 2, LLC dba Newport Jet Center, dated May 1, 2004
21. Branded Airport Dealer Supply Contract between ChevronTexaco Products
Company and Eagle Aviation Resources, Ltd., dated January 18, 2005
Sched. 5.21-2
Material Contracts - Not in the Ordinary Course of Business
1. Stock Purchase Agreement by and among Macquarie Investment Holdings, Inc.,
Executive Air Support, Inc. and the Shareholders named therein, dated
April 28, 2004, as assigned to Borrower, and the related transaction
documents, including, but not limited to, the Side Letter Agreement, dated
July 29, 2004, and the Escrow Agreement, dated July 29, 2004.
2. Amended and Restated Stock Purchase Agreement, dated June 7, 2004, between
Macquarie Investment Holdings, Inc. and Macquarie Infrastructure Assets
Inc.
3. Memorandum of Understanding, dated July 29, 2004, by and between the
People of the State of New York, acting by and through the Department of
Transportation, Macquarie Aviation North America 2, Inc. and Borrower.
4. Indemnification Agreement, dated July 29, 2004, by and between Macquarie
Aviation North America 2, Inc. and Borrower.
5. Membership Interest Purchase Agreement, dated August 18, 2004, among
Borrower and Merced Partners Limited Partnership, Michael Phegley and
Craig Foster, as amended August 20, 2004, August 24, 2004 and December 29,
2004.
6. Income Tax Sharing Agreement, dated as of December 23, 2004 (amended as of
December 31, 2005), by and among Macquarie Infrastructure Company, Inc.
and direct and indirect subsidiaries party thereto.
Other Material Agreements (Macquarie Airports North America Inc.)
1. All those Agreements (as amended) that were assigned to GIF from American
Port Services (and listed in the SPA), as amended by a Consent dated
October 4, 2002 and a subsequent amendment dated August 8, 2003 together
with a letter agreement dated April 1, 2004 and attachments, as amended
from time to time.
2. Master Lease Agreement dated October 15, 2001 between Fortbrand Services,
Inc. a New York corporation and America Port Services, Inc. a Delaware
Corporation, as amended from time to time.
3. Agreement dated this 4th day of May, 2005 by and between Macquarie
Aviation North America 2, Inc. d.b.a. FBO AvCenter PIT, a Delaware
Corporation with its principal offices located at 300 Horizon Drive,
Airside Business Park, Moon Township, PA 15108, hereinafter referred to as
"Contractor", and Southwest Airlines Co., a Texas Corporation with its
principal offices located at 2702 Love Field Drive, Dallas, TX 75235,
hereinafter referred to as "Airline."
Sched. 5.21-3
4. Contract between FBO Avcenter Pittsburgh and International Association of
Machinists and Aerospace Workers District Lodge 83 Local Lodge 52
Effective Date: October 1, 2004
5. Agreement dated August 1, 2004, between Macquarie Aviation North America,
Inc., d.b.a. FBO Avcenter and The Teamsters Automotive Chauffeurs, Parts,
Garage, Office Clerical, Airline, Health Care, Petroleum Industry,
Produce, Bakery and Industrial Workers, within Western Pennsylvania and
Joint Council #40.
6. Master Equipment Lease Agreement between Aircraft Deicing Solutions and
Macquarie Aviation North America 2, Inc. dba FBO Avcenter dated May 1,
2005
7. Equipment Rental Agreement between FBO AvCenter and Global Ground Support
for deicier Truck RE12-1298-0003 dated October 1, 2004.
8. Aviation Dealer Product Sales Agreement as amended; Fueling Truck Rental;
Aviation Mobile Equipment Lease and Associated Agreements Between
ExxonMobil Corporation and Macquarie Aviation North America 2, Inc. dated
September 1, 2003
9. US Government Fueling contract: DESC sp0600-04D-0091 effective April 1,
2004
10. License Agreement dated January 27, 2005 by and between The Delaware River
and Bay Authority and FBO AvCenter extending contract DAP 04-03.
11. Letter agreement dated September 13, 2004 between FBO AvCenter Wilmington
and Bluewater Aviation.
12. Equipment lease dated April 20, 2005 between GSE Services LLC as Lessor
and Macquarie Aviation North America 2, Inc. as Lessee.
13. US Government Fueling Contract DESC into-plane contract 0600-04-R-0123;
and DESC Into-Truck 0600-05-D-4031
14. Agreement dated June 1, 1996, by and between Johnson Controls World
Services Inc. and Ground Handling Inc (in which GHI undertakes to provide
certain ground handling services at Westchester Airport); as assigned by
Agreement dated August 1, 1997, by and among Johnson Controls World
services, Ground Handling, Inc., and American Port Services Inc; and as
assigned by Consent and Agreement dated December 12, 2002, by and between
County of Westchester, American Port Services Inc and Macquarie Aviation
North America Inc.
15. Republic Airport Collective Bargaining Agreement by and between American
Port Services, Inc and the International Union of Operating Engineers
Locals 30, 30A, 30B, 30C, and 30D (Awaiting Union signature)
Sched. 5.21-4
16. Atlantic City Collective Bargaining Agreement dated May 1, 2004, by and
between Macquarie Aviation North America 2, Inc d/b/a AvPorts and the
International Union of Operating Engineers Locals 68, 68A, and 68B.
17. Teterboro Collective Bargaining Agreement dated September 1, 2004, by and
between Macquarie Aviation North America 2, Inc and the Transport Workers
Union
18. Teterboro Collective Bargaining Agreement (expired) dated July 9, 2001 by
and between American Port Services and the International Brotherhood of
Teamsters (being renegotiated)
19. Westchester Airport Collective Bargaining Agreement dated July 19, 2005 by
and between Macquarie Aviation North America 2, Inc, and Local I-62 of the
International Association of Fire Fighters, Inc.
20. Albany International Airport Collective Bargaining Agreement dated January
1, 2006 by and between Macquarie Aviation North America 2, Inc. and United
Transportation Union
Insurance Policies
See items set forth on Schedule 5.25.
TERM/RENEWAL INFORMATION FOR FBO LEASES
FBO Location Terms of Lease and Renewal Options
- ------------ ----------------------------------
1. Midway 9/23/03-5/1/20; may be extended for no more than five additional years upon
mutual agreement
2. Teterboro TA-191 Pursuant to Supplement No. 2, the term of TA-191 is coterminous with TA-121
(No. 3 below)
3. Teterboro TA-121 2/14/79-12/2019; contract sets forth 20 years after completion of construction
as set forth in Supplement No. 4 to Teterboro Airport Agreement TA-121
4. Bridgeport 9/1/95-9/30/05; two additional five-year renewal periods, provided tenant is
not in default at time of renewal; exercise of option requires 90 days' written
notice
5. Bridgeport 9/5/02-9/30/11; two additional five-year renewal periods, provided tenant is
not in default at time of renewal; exercise of option requires 90 days' written
notice
6. Hartford 7/1/95-9/30/10; two additional five-year options; option must be exercised no
less than six months prior to expiration of then existing lease
Sched. 5.21-5
7. Hartford 10/1/85-9/30/10; two additional five-year options upon written notice during
the three-month period preceding the last six months of the 25th and 30th years
8. Hartford 3/23/90-3/22/15; two additional five-year extensions to be agreed upon mutually
acceptable terms; notice of exercise of option required no sooner than twelve
months nor later than nine months prior to 3/22/15 and 3/22/20, respectively
9. Philadelphia 12/8/98-12/8/18; two additional renewal periods of five years and three years
NE Philadelphia with notice one year prior to expiration of lease or lease renewal
10. Houston 8/25/70-11/2/09; One additional renewal period of four years at Lessee's option
11. Houston Month-to-month; provided that in no event shall the term extend beyond 6/30/08
12. Farmingdale 5/1/87-7/31/15, option to extend for additional period of up to 10 years if
Lessee expends $5.6 million in capital investment in the facility over the
ten-year period from 12/24/97-12/24/07
13. NOIA 10/1/77-11/4/06; option to extend for one ten-year period with 90 days' written
notice prior to 8/6/06
14. NOIA Term is occupancy date through 20 year period thereafter [contract is undated,
but notary stamp on signature page indicates date of 3/23/01]; two five-year
option periods based on investment in leasehold improvements of $200,000 for
each five-year extension (subject to reduction), up to maximum occupancy of 30
years
15. Lakefront 2/1/95-1/31/00; three five-year options upon mutual agreement
16. [Reserved]
17. Palm Springs 12/15/81 - 12/14/31; per the contract, there are no options to renew this lease
18. John Wayne 11/1/94 - 10/31/14; per the contract, there are no options to renew this lease
19. Pittsburgh 29 years and 11 months from 6/2001
20. Pittsburgh 10 years from 6/2001, with four 5-year option periods
Sched. 5.21-6
21. Louisville Four 5-year terms from 6/96 - 6/2016. All options to extend through to 2016
have been exercised.
22. [Reserved]
23-25. Gulfport 58 months remaining from 1/31/2005 under the FBO lease, and from 11/30/2004
under the fuel farm lease
26-30. Burlington Through 7/1/2025 with two 5-year automatic renewal terms
31. Wilmington 9/27/87 - 9/27/2007 (Initial term) subject to four 5-year extension periods
32. Wilmington 11/1/2004 through 10/31/2009; subject to three 5-year extension periods
33. McCarran 1/1/96 - 12/31/25
TERM/RENEWAL INFORMATION FOR MANAGEMENT CONTRACTS AND HELIPORT CONTRACT
Location Terms of Lease and Renewal Options
- -------- ----------------------------------
1. East 34th Street Heliport 10 years from the end of the "Improvements Phase", defined as the earlier of
the completion of specified improvements or 24 months from 9/1/2005, for a
total of up to 12 years plus a 6 month extension, subject to further agreement
between the parties.
Letters of Credit
Each item set forth on Schedule 6.2(a)
Promissory Notes
Each item set forth on Schedule 6.2(a)
Sched. 5.21-7
Schedule 5.25
to Loan Agreement
SCHEDULE 5.25
INSURANCE
See attached.
Sched. 5.25-1
Schedule 5.26
to Loan Agreement
SCHEDULE 5.26
BANK ACCOUNTS AND SECURITIES ACCOUNTS
FINANCIAL INSTITUTION(S)
WHERE ACCOUNTS ACCOUNT DESCRIPTIONS OF
CREDIT PARTY MAINTAINED NUMBERS ACCOUNTS
------------ ---------- ------- --------
Macquarie Aviation North America 2 Bank of America 3936827626 Disbursement
Inc.
Macquarie Aviation North America 2 Bank of America 3936827668 Depository
Inc.
Macquarie Aviation North America 2 Bank of America 3936827655 Disbursement
Inc.
Macquarie Aviation North America 2 Bank of America 3936827642 Disbursement
Inc.
Macquarie Aviation North America 2 Bank of America 3936827639 Disbursement
Inc.
Macquarie Aviation North America 2 Bank of America 3936830435 Depository
Inc.
Macquarie Aviation North America Inc. Bank of America 3936830448 Disbursement
ILG Avcenter, Inc. Bank of America 3936827671 Disbursement
ILG Avcenter, Inc. Bank of America 3936830451 Disbursement
BTV Avcenter, Inc. Bank of America 3936827684 Depository
BTV Avcenter, Inc. Bank of America 3936830464 Disbursement
Atlantic Aviation Corporation J.P. Morgan Chase Bank 015-00042903 Houston (HOU) *
Atlantic Aviation Corporation Fifth Third Bank 7512941639 Midway - (MDW) *
General Aviation L.L.C. Hibernia National Bank 812062875 Hangar (FMI) MSY *
Eagle Aviation Resources, Ltd. Nevada State Bank 710004516 General Account *
Eagle Aviation Resources, Ltd. Nevada State Bank 710004524 Payroll *
Eagle Aviation Resources, Ltd. Nevada State Bank 085107217 Money Market Account *
Atlantic Aviation Corporation PNC Bank 56-0349-5287 Operating (and associated
lockbox) **
Atlantic Aviation Corporation PNC Bank 56-0081-4457 Disbursing (and associated
lockbox) **
Atlantic Aviation Corporation PNC Bank 56-0081-6524 Dental Claims (and
associated lockbox) **
Flightways of Long Island, Inc. State Bank of Long Island 0517005305 Operating - L.I. *
Atlantic Aviation Wachovia Bank 2000015139922 Awards
Sched. 5.26-1
FINANCIAL INSTITUTION(S)
WHERE ACCOUNTS ACCOUNT DESCRIPTIONS OF
CREDIT PARTY MAINTAINED NUMBERS ACCOUNTS
------------ ---------- ------- --------
Atlantic Aviation (MSY) Wachovia Bank 2000017797443 International(MSY)
Atlantic Aviation (New Orleans Wachovia Bank 2000017797456 Lakefront(NEW)
Lakefront)
Atlantic Aviation (Palm Springs) Wachovia Bank 2000022996271 Palm Springs (PSP)
Atlantic Aviation (Newport) Wachovia Bank 2000022996268 Orange County (SNA)
Atlantic Aviation (Lockbox) Wachovia Bank 2000015139935 Lockbox
Atlantic Aviation (Bridgeport) Wachovia Bank 2000011060228 Bridgeport (BDR)
Executive Air Support, Inc. Wachovia Bank 2000003397925 Concentration
Executive Air Support, Inc. Wachovia Bank 2000011042660 Operating ZBA-Payables
Executive Air Support, Inc. Wachovia Bank 2000011042673 Payroll ZBA
Executive Air Support, Inc./Atlantic Wachovia Bank 2000011043258 Petty Cash Checking
Aviation
Atlantic Aviation Wachovia Bank 2000011060244 Cigna Med-Dental
Executive Air Support, Inc. Wachovia Bank 2000003268216 Operating-Misc Dep.
Atlantic Aviation (Farmingdale) Wachovia Bank 2000011042657 Long Island ACH
Atlantic Aviation (Hartford) Wachovia Bank 2000011060231 Hartford (HFD)
Atlantic Aviation (Houston) Wachovia Bank 2000011060189 Houston (HOU)
Atlantic Aviation (Midway) Wachovia Bank 2000011060176 Midway (MDW)
Atlantic Aviation (Philadelphia) Wachovia Bank 2000011060202 Philadelphia (PHL)
Atlantic Aviation (Philadelphia Wachovia Bank 2000011060215 NE Philadelphia (PNE)
Northeast)
Atlantic Aviation (Teterboro) Wachovia Bank 2000011060192 Teterboro (TEB)
Palm Springs FBO Two LLC Wells Fargo Bank 4945014702 Palm Springs (PSP)
Palm Springs FBO Two LLC Wells Fargo Bank 4000063107 Concentration
Newport FBO Two LLC Wells Fargo Bank 4945037083 Orange County (SNA)
Sched. 5.26-2
Schedule 5.27
to Loan Agreement
SCHEDULE 5.27
AGREEMENTS WITH AFFILIATES
Income Tax Sharing Agreement, dated as of December 23, 2004 (amended as of
December 31, 2005), by and among Macquarie Infrastructure Company, Inc. and
direct and indirect subsidiaries party thereto.
Sched. 5.27-1
Schedule 5.29
to Loan Agreement
SCHEDULE 5.29
ENVIRONMENTAL MATTERS
Reference is made to the matters described in the following reports:
ATLANTIC AVIATION
- - Phase I Environmental Site Assessment of the Atlantic
Aviation facility located at Chicago Midway Airport (5200 and 5236 West
63rd Street, Chicago, Illinois) dated April 16, 2004, prepared by
Environmental Strategies Consulting LLC.
- - Phase I Environmental Site Assessment of the Atlantic Aviation
facility at Teterboro Airport (233 Industrial Avenue, Teterboro, New
Jersey) dated April 19, 2004, prepared by Environmental Strategies
Consulting LLC.
- - Phase I Environmental Site Assessment of the Atlantic Aviation
FBO located at Sikorsky Airport (One Main Street, Hartford, Connecticut)
dated April 14, 2002, prepared by Environmental Strategies Consulting
LLC.
- - Phase I Environmental Site Assessment of the Atlantic Aviation
facility located at Brainard Airport (399 Industrial Avenue, Hartford,
Connecticut) dated April 19, 2004, prepared by Environmental Strategies
Consulting LLC.
- - Phase I Environmental Site Assessment of the Atlantic Aviation
facility at Philadelphia International Airport (8375 Enterprise Avenue,
Philadelphia, Pennsylvania) dated April 16, 2004, prepared by
Environmental Strategies Consulting LLC.
- - Phase I Environmental Site Assessment of the Atlantic Aviation
facility located at Northeast Philadelphia Airport (9800 Ashton Avenue,
Philadelphia, Pennsylvania) dated April 15, 2004, prepared by
Environmental Strategies Consulting LLC.
- - Phase I Environmental Site Assessment of the Atlantic Aviation
facility located at Hobby Airport (7930 Airport Boulevard, Houston, Texas)
dated April 15, 2004, prepared by Environmental Strategies Consulting LLC.
- - Phase I Environmental Site Assessment of the Atlantic Aviation
facility at Republic Airport (NYS Route 109, East Farmingdale, New York)
dated April 19, 2004, prepared by Environmental Strategies Consulting LLC.
- - Phase I Environmental Site Assessment of the Atlantic Aviation
facility at New Orleans International Airport (4000 Bainbridge Drive,
Kenner, Louisiana) dated April 13, 2004, prepared by Environmental
Strategies Consulting LLC.
Sched. 5.29-1
- - Phase I Environmental Site Assessment of the Atlantic Aviation
facility at New Orleans Lakefront Airport (8408 Igor Sikorsky Drive, New
Orleans, Louisiana) dated April 13, 2004, prepared by Environmental
Strategies Consulting LLC.
- - Phase I Environmental Site Assessment dated March 2000, prepared by
Madison Environmental Services for Atlantic Aviation Corporation, Inc.
("Atlantic Aviation") fixed base operation ("FBO") located at Chicago
Midway Airport (5200 and 5236 West 63rd Street, Chicago, Cook County,
Illinois)
- - Phase I Environmental Site Assessment dated March 2000, prepared by
Madison Environmental Services for Atlantic Aviation FBO located at
William P. Hobby Airport (7930 Airport Boulevard, Houston, Harris County,
Texas) lease by AAC.
- - Phase I Environmental Site Assessment dated November 17, 1999,
prepared by C. H. Guernsey & Company for Million Air ("Million Air")
Mini-Terminal/Reservation Facility located at Republic Airport in East
Farmingdale, New York (District 100, Section 071, Block 1, Lot 5, Suffolk
County, New York).
- - Phase I Environmental Site Assessment dated March 2000, prepared by
Madison Environmental Services for Atlantic Aviation FBO located at
Philadelphia International Airport (8375 Enterprise Avenue, Philadelphia,
Philadelphia County, Pennsylvania).
- - Phase I Environmental Site Assessment dated March 2000, prepared by
Madison Environmental Services for Atlantic Aviation FBO located at
Teterboro Airport (233 Industrial Avenue, Bergen County, Teterboro, New
Jersey).
- - Phase I Environmental Site Assessment dated March 2000, prepared by
Madison Environmental Services for Atlantic Aviation FBO located at
Northeast Philadelphia Airport (2700 Grant Avenue, Philadelphia,
Philadelphia County, Pennsylvania).
- - Phase I Environmental Site Assessment dated February 24, 2000,
prepared by C. H. Guernsey & Company for Million Air FBO located at
Brainard Airport, Hartford, Hartford County, Connecticut (City of Hartford
Parcel Identification 232003001).
- - Phase I Environmental Site Assessment dated February 24, 2000,
prepared by C. H. Guernsey & Company for Million Air storage and
maintenance facilities located at Sikorsky Memorial Airport, Stratford,
Fairfield County, Connecticut.
- - Phase I Environmental Site Assessment dated December 2003, prepared
by ENSR Corporation for Atlantic Aviation Services FBO located at
Lakefront Airport (8227 Lloyd Stearman Drive, New Orleans, New Orleans
Parish, Louisiana).
- - Phase I Environmental Site Assessment dated December 2003, prepared
by ENSR Corporation for Atlantic Aviation Services FBO located at New
Orleans International Airport (200 Crofton Road, Kenner, Jefferson Parish,
Louisiana).
- - Phase I Environmental Site Assessment dated April 2003, prepared by
ENSR Corporation for Atlantic Aviation FBO located at Sikorsky Memorial
Airport (Main Street, Stratford, Connecticut)
Sched. 5.29-2
- - Phase I Environmental Site Assessment dated April 2003, prepared by
ENSR Corporation for Atlantic Aviation FBO located at Republic Airport
(NYS Route 109, East Farmingdale, New York)
- - Phase I Environmental Site Assessment dated April 2003, prepared by
ENSR Corporation for FBO located at Brainard Airport (58 Lindbergh Drive,
Hartford, Connecticut).
- - Phase I Environmental Site Assessment dated April 2002, prepared by
ENSR Corporation for Atlantic Aviation FBO located at 7930 Airport
Boulevard, Houston, Texas.
- - Phase I Environmental Site Assessment dated April 2003, prepared by
ENSR Consulting and Engineering for Atlantic Aviation FBO located at 5200
and 5236 West 63rd Street, Chicago, Illinois.
- - Phase I Environmental Site Assessment dated April 2003, prepared by
ENSR Corporation for Atlantic Aviation FBO located at NE Philadelphia
Airport, Philadelphia, Pennsylvania.
- - Phase I Environmental Site Assessment dated April 2003, prepared by
ENSR Corporation for Atlantic Aviation Corporation FBO located at
Philadelphia International Airport (8375 Enterprise Avenue, Philadelphia,
Pennsylvania 19153)
- - Phase I Environmental Site Assessment dated April 2002, prepared by
ENSR Corporation for Atlantic Aviation FBO located at Teterboro Airport
(233 Industrial Avenue, Teterboro, New Jersey)
GENERAL AVIATION
- - Environmental Strategies Consulting, 2004. Phase I Environmental Site
Assessment Draft Report of Million Air FBO, Palm Springs International
Airport, 145 South Gene Autry Trail, Palm Springs, CA. July 19, 2004.
- - Earth Systems Southwest, 2002. Phase I Environmental Site Assessment
Update, Million Air Facility, Palm Springs Airport, 145 South Gene Autry
Trail, Palm Springs, CA. April 15, 2002.
- - Earth Systems Southwest, 1999. Phase I Environmental Site Assessment
Report, Million Air Fuel Storage Facility, Palm Springs Airport, Palm
Springs, CA. September 15, 1999.
- - Environmental Strategies Consulting, 2004. Phase I Environmental Site
Assessment Draft Report of Newport Beach FBO, Newport Jet Center, John
Wayne Airport, 19711 Campus Drive, Santa Ana, CA. July 19, 2004.
- - SECOR International, 2002. Phase I Environmental Site Assessment
Update Report, Newport Aviation Center, 19531, 19711, and 19851 Campus
Drive, John Wayne Airport, Santa Ana, CA. April 19, 2002.
Sched. 5.29-3
- - SECOR International, 2000. Phase I Environmental Site Assessment
Report, Newport Aviation Center, 19531, 19711, and 19851 Campus Drive,
John Wayne Airport, Santa Ana, CA. November 7, 2000.
LAS VEGAS FBO
Draft Phase I Environmental Site Assessment, Las Vegas FBO, Las
Vegas Executive Air Terminal, McCarren Int'l Airport, 275 East Tropicana Avenue,
Las Vegas Nevada (May 3, 2005).
AVPORTS
- - Phase I Environmental Site Assessment of FBO 34th Street Metroport
(499 West 34th & FDR Drive, New York, New York) dated July 3, 2002,
prepared by Environmental Strategies Corporation
- - Phase I Environmental Site Assessment of FBO Avcenter leasehold (4313
Hewes Avenue, Gulfport Mississippi) dated July 8, 2002, prepared by
Environmental Strategies Corporation.
- - Phase I Environmental Site Assessment of American Ports Services,
Inc. FBO Avcenter Standiford Field (1131 Standiford Avenue, Louisville,
Kentucky) dated July 9, 2002, prepared by Environmental Strategies
Corporation.
- - Phase I Environmental Site Assessment of FBO Aviation Center (300
Horizon Drive, Moon Township, Pennsylvania) dated July 10, 2002, prepared
by Environmental Strategies Corporation.
- - Phase I Environmental Site Assessment of FBO Avcenter Facility (1130
Airport Drive, South Burlington, Vermont) dated July 9, 2002, prepared by
Environmental Strategies Corporation.
- - Phase I Environmental Site Assessment of Amports (100 Atlantic City
International Airport, Egg Harbor, New Jersey) dated July 3, 2002,
prepared by Environmental Strategies Corporation.
- - Phase I Environmental Site Assessment of Amports Tweed New Haven
Regional Airport (155 Burr Street, New Haven, Connecticut) dated
July 3, 2002, prepared by Environmental Strategies Corporation.
Sched. 5.29-4
- - Phase I Environmental Site Assessment of Amports Teterboro Airport
(399 Industrial Avenue, Teterboro, New Jersey) dated July 8, 2002,
prepared by Environmental Strategies Corporation.
- - Phase I Environmental Site Assessment of Avcenter Leasehold (120 Old
Churchman's Road, New Castle, Deleware) dated July 8, 2002, prepared by
Environmental Strategies Corporation.
- - Phase I Environmental Site Assessment of Amports Westchester County
Airport (240 Airport Road, White Plains, New York) dated July 11, 2002,
prepared by Environmental Strategies Corporation.
- - Phase 1 Environmental Site Assessment East 34th Street Heliport,
December 2004.
- - Limited Phase II Environmental Site Assessment Report for Aboveground
Storage Tank Farm, Louisville International Airport, Kentucky.
Sched. 5.29-5
Schedule 6.2(a)
to Loan Agreement
SCHEDULE 6.2(A)
EXISTING INDEBTEDNESS
Letters of Credit
1. $51,760.00 letter of credit number SM205312W issued by Wachovia Bank,
National Association in favor of City of Chicago expiring September 19, 2006.
2. $50,000.00 letter of credit number 3052169 issued by Bank of America,
expiring October 31, 2006 and supported by cash held on deposit at Bank of
America, in favor of American Casualty Company of Reading, PA.
3. $273,036.00 letter of credit number 004479183 issued by Mizuho Corporate
Bank, Ltd. in favor of County of Orange, expiring March 17, 2007.
4. $51,760.00 letter of credit number 004485241 issued by Mizuho Corporate Bank,
Ltd. in favor of City of Chicago, expiring April 11, 2007.
5. $638,441.00 letter of credit number 004485266 issued by Mizuho Corporate
Bank, Ltd. in favor of City of Philadelphia, expiring April 11, 2007.
6. $261,706.00 letter of credit number 004485257 issued by Mizuho Corporate
Bank, Ltd. in favor of Allegheny County Airport Authority, expiring April 11,
2007.
7. $1,000,000.00 letter of credit number 004457701 issued by Mizuho Corporate
Bank, Ltd. and confirmed by National City, in favor of The Regional Airport
Authority of Louisville and Jefferson County, expiring March 31, 2007.
Promissory Notes
1. That certain Promissory Term Note dated June 26, 2001, in the original
principal amount of $300,000 executed by General Aviation Corporation
(predecessor of General Aviation LLC) payable to Texaco Aviation Corporation
(now payable to Avfuel Corporation).
2. That certain Promissory Note dated August 5, 2002, in the original principal
amount of $534,073.12 executed by Executive Air Support, Inc. payable to Chevron
Texaco Global Aviation.
Sched. 6.2(a)-1
Schedule 6.2(b)
to Loan Agreement
SCHEDULE 6.2(B)
EXISTING LIENS
SECURED
ENTITY JURISDICTION FILINGS/DATE PARTY COLLATERAL
------ ------------ ------------ ----- ----------
ATLANTIC AVIATION Secretary of State UCC-1 General Equipment
FLIGHT SUPPORT, INC. Illinois Filing # 1964092 Electric
Date: 3/23/2000 Capital
Corporation
ATLANTIC AVIATION Secretary of State UCC-1 Progress Furniture/Equipmant
FLIGHT SUPPORT, INC. New Jersey Filing # 5723280 FS Leasing Company
Date: 8/20/2002
ATLANTIC AVIATION Secretary of State UCC-1 City of Personal Property
PHILADELPHIA, INC. Delaware Filing # 2032403 2 Philadelphia, and all Fixtures
Date: 2/6/2002 acting through located at the
its Department Leased Premises
of Commerce,
Division of
Aviation
EXECUTIVE AIR Secretary of State UCC-1 ChevronTexaco Equipment
SUPPORT, INC. Delaware Filing #2320678 0 Global (2 vehicles)
Date: 12/23/1992 Aviation, a
Division of
Chevron U.S.A.,
Inc.
NORTH AMERICA Secretary of State UCC-1 Yamaha Motor Golf cart equipment:
CAPITAL HOLDING Delaware Filing #5325929 9 Corporation, USA JUO-0103414;
COMPANY Date: 10/20/2005 JUO-0103476;
JUO-0103416; and
JUO-0103477.
FLIGHTWAYS OF LONG Department of State UCC-1 Aviation Equipment
ISLAND, INC. New York Filing # 132616 Equipment Co.,
Date: 06/06/2002 L.P.
FLIGHTWAYS OF LONG Department of State UCC-1 Aviation Equipment
ISLAND, INC. New York Filing # 132628 Equipment Co.,
Date: 06/06/2002 L.P.
FLIGHTWAYS OF LONG Department of State UCC-1 Aviation Equipment
ISLAND, INC. New York Filing # 132631 Equipment Co.,
Date: 06/06/2002 L.P.
ATLANTIC AVIATION Secretary of State UCC-1 Wells Fargo Equipment
CORPORATION Illinois Filing # 4304822 FS Equipment
Date: 12/13/2000 Finance, Inc.,
as assignee
ATLANTIC AVIATION Secretary of State UCC-1 Wells Fargo Equipment
CORPORATION Illinois Filing # 4375852 FS Equipment
Date: 04/26/2001 Finance, Inc.,
as assignee
Sched. 6.2(b)-1
SECURED
ENTITY JURISDICTION FILINGS/DATE PARTY COLLATERAL
------ ------------ ------------ ----- ----------
ATLANTIC AVIATION Secretary of State UCC-1 Wells Fargo Equipment
CORPORATION Illinois Filing # 4382602 FS Equipment
Date: 05/10/2001 Finance, Inc.,
as assignee
ATLANTIC AVIATION Secretary of State UCC-1 Arc Distributors Equipment
CORPORATION Illinois Filing # 9985328 FS
Date: 07/07/2005
ATLANTIC AVIATION Secretary of State UCC-1 Siemens Credit Communications
CORPORATION Delaware Filing # 0002944 Corporation equipment
Date: 01/14/2000
ATLANTIC AVIATION Secretary of State UCC-1 Canon Financial Fax equipment
CORPORATION Delaware Filing # 10017637 Services, Inc.
Date: 12/29/2000
ATLANTIC AVIATION Secretary of State UCC-1 Siemens Communications
CORPORATION Delaware Filing # 10155486 Financial equipment
Date: 02/23/2001 Services, Inc.
ATLANTIC AVIATION Secretary of State UCC-1 Court Square Office furniture
CORPORATION Delaware Filing # 10273503 Leasing Corp.
Date: 03/22/2001
ATLANTIC AVIATION Secretary of State UCC-1 Aviation Aircraft refueler
CORPORATION Delaware Filing # 21663743 Equipment Co., and associated
Date: 06/06/2002 L.P. equipment
ATLANTIC AVIATION Secretary of State UCC-1 Aviation Aircraft refueler
CORPORATION Delaware Filing # 21664691 Equipment Co., and associated
Date: 06/06/2002 L.P. equipment
ATLANTIC AVIATION Secretary of State UCC-1 Siemens Communications
CORPORATION Delaware Filing # 33299800 Financial equipment
Date: 12/15/2003 Services, Inc.
ATLANTIC AVIATION Secretary of State UCC-1 Siemens Communications
CORPORATION Delaware Filing # 40319717 Financial equipment
Date: 02/05/2004 Services, Inc.
ATLANTIC AVIATION Secretary of State UCC-1 US Express Camera and video
CORPORATION Delaware Filing # 51759589 Leasing, Inc. equipment
Date: 06/08/2005
MACQUARIE AVIATION Secretary of State UCC-1 Hancock Bank Equipment
NORTH AMERICA 2 INC. Mississippi Filing #20050089105A
Date: 05/09/2005
MACQUARIE AVIATION Secretary of State UCC-1 Inter-Tel Communications
NORTH AMERICA 2 INC. Delaware Filing # 30663685 Leasing, Inc. equipment
Date: 03/18/2003
MACQUARIE AVIATION Secretary of State UCC-1 Fortbrand Equipment (aircraft
NORTH AMERICA 2 INC. Delaware Filing # 51061804 Services, Inc. deicer)
Date: 03/29/2005
MACQUARIE AVIATION Secretary of State UCC-1 Fortbrand Equipment (floor
NORTH AMERICA 2 INC. Delaware Filing # 51157594 Services, Inc. scrubber)
Date: 04/08/2005
MACQUARIE AVIATION Secretary of State UCC-1 Fortbrand Equipment (ground
NORTH AMERICA 2 INC. Delaware Filing # 53247492 Services, Inc. power units)
Date: 10/20/2005
Sched. 6.2(b)-2
SECURED
ENTITY JURISDICTION FILINGS/DATE PARTY COLLATERAL
------ ------------ ------------ ----- ----------
MACQUARIE AVIATION Secretary of State UCC-1 Commercial Equipment (aircraft
NORTH AMERICA 2 INC. Delaware Filing # 53615276 Leasing refueler)
Date: 11/22/2005 Corporation
MACQUARIE AVIATION Secretary of State UCC-1 Commercial Equipment (aircraft
NORTH AMERICA 2 INC. Delaware Filing # 53615334 Leasing refueler)
Date: 11/22/2005 Corporation
MACQUARIE AVIATION Secretary of State UCC-1 Commercial Equipment (aircraft
NORTH AMERICA 2 INC. Delaware Filing # 53615359 Leasing refueler)
Date: 11/22/2005 Corporation
MACQUARIE AVIATION Secretary of State UCC-1 Commercial Equipment (aircraft
NORTH AMERICA 2 INC. Delaware Filing # 53615425 Leasing refueler)
Date: 11/22/2005 Corporation
MACQUARIE AVIATION Secretary of State UCC-1 Commercial Equipment (aircraft
NORTH AMERICA 2 INC. Delaware Filing # 53615482 Leasing refueler)
Date: 11/22/2005 Corporation
MACQUARIE AVIATION Secretary of State UCC-1 Commercial Equipment (aircraft
NORTH AMERICA 2 INC. Delaware Filing # 53615730 Leasing refueler)
Date: 11/22/2005 Corporation
Sched. 6.2(b)-3
Schedule 6.2(e)
to Loan Agreement
SCHEDULE 6.2(E)
EXISTING INVESTMENTS
1. Any money market investments.