EXHIBIT 10.16
EXECUTION COPY
LOAN AGREEMENT
dated as of October 15, 2004
among
NORTH AMERICA CAPITAL HOLDING COMPANY,
as Borrower,
THE LENDERS, as herein defined,
HSH NORDBANK AG, NEW YORK BRANCH,
as Administrative Agent,
and
HSH NORDBANK AG, NEW YORK BRANCH
as Sole Lead Arranger
TABLE OF CONTENTS
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ARTICLE I INTERPRETATION................................................... 1
ARTICLE II THE CREDIT FACILITIES............................................ 1
Section 2.1 Term Loan Facility............................................ 1
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............................................ 13
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 Initial Borrowing of Term Loans....... 22
Section 4.2 Conditions Precedent to Second Borrowing of Term Loans........ 27
Section 4.3 Conditions Precedent to All Loans............................. 32
ARTICLE V REPRESENTATIONS AND WARRANTIES................................... 33
Section 5.1 Due Incorporation, Qualification, etc. ....................... 33
Section 5.2 Authority..................................................... 33
Section 5.3 Enforceability................................................ 33
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Section 5.4 Non-Contravention............................................. 33
Section 5.5 Approvals..................................................... 34
Section 5.6 No Violation or Default....................................... 34
Section 5.7 Litigation.................................................... 35
Section 5.8 Possession Under Leases; Title................................ 35
Section 5.9 Financial Statements.......................................... 35
Section 5.10 Creation, Perfection and Priority of Liens.................... 36
Section 5.11 Equity Securities............................................. 36
Section 5.12 No Agreements to Sell Assets; Etc. ........................... 36
Section 5.13 Employee Benefit Plans........................................ 36
Section 5.14 Other Regulations............................................. 37
Section 5.15 Patent and Other Rights....................................... 37
Section 5.16 Governmental Charges.......................................... 38
Section 5.17 Margin Stock.................................................. 38
Section 5.18 Subsidiaries, Etc. ........................................... 38
Section 5.19 Solvency, Etc. ............................................... 38
Section 5.20 Labor Matters................................................. 39
Section 5.21 Contracts..................................................... 39
Section 5.22 No Material Adverse Effect.................................... 40
Section 5.23 Accuracy of Information Furnished............................. 40
Section 5.24 Brokerage Commissions......................................... 40
Section 5.25 Policies of Insurance......................................... 41
Section 5.26 Bank Accounts and Securities Accounts......................... 41
Section 5.27 Agreements with Affiliates and Other Agreements............... 41
Section 5.28 Acquisitions.................................................. 41
ARTICLE VI COVENANTS........................................................ 41
Section 6.1 Affirmative Covenants......................................... 41
(a) Financial Statements; Operating Reports; Financial Certifications.. 41
(b) Other Notices and Reports.......................................... 43
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(c) Books and Records................................................ 44
(d) Inspections...................................................... 44
(e) Insurance........................................................ 44
(f) Governmental Charges and Other Indebtedness...................... 46
(g) Use of Proceeds.................................................. 46
(h) General Business Operations...................................... 46
(i) Compliance with Legal Requirements and Contractual Obligations... 46
(j) Additional Collateral............................................ 46
(k) New Subsidiaries................................................. 47
(l) Lender Hedging Agreements........................................ 47
(m) Preservation of Security Interests............................... 47
(n) Step-in Rights................................................... 47
(o) Event of Loss.................................................... 48
(p) Environmental Management System ................................. 49
(q) Further Assurances............................................... 49
(r) Cash Management Procedures; Payments to Reserve Accounts ........ 49
(s) Assignment of FBO Leases......................................... 51
(t) Stock Pledge of Certain Borrower Subsidiaries.................... 51
(u) Security Interest in Fuel Trucks................................. 51
(v) Closing of Operating Accounts.................................... 51
(w) Equity Contributions by MIC to pay certain Fees and Expenses..... 52
Section 6.2 Negative Covenants............................................ 53
(a) Indebtedness and Guarantee Obligations........................... 53
(b) Liens, Negative Pledges.......................................... 53
(c) Asset Dispositions............................................... 54
(d) Mergers, Acquisitions, Etc. ..................................... 55
(e) Investments...................................................... 55
(f) Distributions.................................................... 56
(g) Change in Business............................................... 56
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(h) Payments of Indebtedness, Amendments to Documents................ 56
(i) ERISA............................................................ 56
(j) Transactions With Affiliates..................................... 57
(k) Accounts......................................................... 57
(l) Accounting Changes............................................... 57
(m) Amendments of Material Documents................................. 57
(n) Joint Ventures................................................... 58
(o) Management Fees.................................................. 58
(p) Jurisdiction of Formation........................................ 58
(q) Sales and Leaseback; Off-Balance Sheet Financing................. 58
(r) Expansion Capital Expenditures................................... 58
Section 6.3 Leverage Ratio................................................ 58
ARTICLE VII EVENTS OF DEFAULT; REMEDIES...................................... 59
Section 7.1 Events of Default............................................. 59
Section 7.2 Remedies Upon Event of Default................................ 63
Section 7.3 Waiver of Event of Default.................................... 65
ARTICLE VIII ADMINISTRATIVE AGENT............................................. 65
Section 8.1 Appointment and Authorization of Administrative Agent......... 65
Section 8.2 Delegation of Duties.......................................... 65
Section 8.3 Liability of Administrative Agent............................. 65
Section 8.4 Reliance by Administrative Agent.............................. 66
Section 8.5 Notice of Default............................................. 66
Section 8.6 Credit Decision; Disclosure of Information.................... 67
Section 8.7 Indemnification............................................... 67
Section 8.8 Administrative Agent in Its Individual Capacity............... 67
Section 8.9 Collateral Agency Agreement................................... 68
Section 8.10 Successor Administrative Agent................................ 68
Section 8.11 Lead Arrangers................................................ 69
ARTICLE IX HEDGING ARRANGEMENTS............................................. 69
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Section 9.1 Hedging Payments.............................................. 69
Section 9.2 Voluntary Termination......................................... 69
Section 9.3 Involuntary Termination or Reduction.......................... 70
Section 9.4 Agreement to be Bound by Loan Documents; Benefit of Lien of
Security Documents............................................ 70
ARTICLE X MISCELLANEOUS.................................................... 70
Section 10.1 Amendments; Waivers........................................... 70
Section 10.2 Notices....................................................... 72
Section 10.3 Expenses; Indemnity; Damage Waiver............................ 74
Section 10.4 Successors and Assigns........................................ 75
Section 10.5 Confidentiality............................................... 77
Section 10.6 Limitation on Interest........................................ 78
Section 10.7 Right of Setoff............................................... 78
Section 10.8 Nonliability of Lenders....................................... 78
Section 10.9 Limitation of Recourse........................................ 79
Section 10.10 Integration................................................... 79
Section 10.11 Survival of Representations and Warranties.................... 80
Section 10.12 Governing Law................................................. 80
Section 10.13 Submission To Jurisdiction; WAIVER OF JURY TRIAL.............. 80
Section 10.14 Severability.................................................. 81
Section 10.15 Headings...................................................... 81
Section 10.16 Counterparts.................................................. 81
Section 10.17 Joinder Agreement and Other Agreements........................ 81
APPENDIX A Definitions and Rules of Interpretation
SCHEDULES:
Schedule 2.1 Commitments and Pro Rata Shares
Schedule 2.5 Required Class A Loan Amortization
Schedule 5.5 FBO Consents
Schedule 5.7 Litigation and Proceedings
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Schedule 5.8 Leases
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 Leverage Ratio Certification
EXHIBIT D-2 Form of Debt Service Coverage Ratio Certification
EXHIBIT E Terms of Permitted Subordinated Debt
EXHIBIT F Form of Control Agreement
EXHIBIT G Form of Assignment and Assumption
EXHIBIT H Form of Joinder Agreement
LOAN AGREEMENT (this "Agreement"), dated as of October 15, 2004 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 HSH NORDBANK AG, NEW YORK BRANCH, as Administrative
Agent for the Lenders (in such capacity, the "Administrative Agent").
RECITALS
A. The Borrower has requested that the Lenders provide loans (i) to
refinance the acquisition of the shares of capital stock of Executive Air
Support, Inc., a Delaware corporation, and (ii) to finance the acquisition of
the Equity Securities of General Aviation Holdings LLC, a Delaware limited
liability company ("GAH"), the direct parent company of Newport FBO Two LLC, a
Delaware limited liability company, and Palm Springs FBO Two LLC, a Delaware
limited liability company.
B. The Lenders are willing to provide such financing to the Borrower
subject to and upon the terms and conditions set forth herein.
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, each Class A Lender severally agrees to make term loans (each a
"Class A Loan" and collectively the "Class A Loans") to the Borrower during the
Term Loan Commitment Period in an aggregate principal amount not to exceed the
amount of such Term Loan Lender's Class A Commitment, and each Class B Lender
severally agrees to make a term loan (each a "Class B Loan" and collectively the
"Class B Loans", and together with the Class A Loans, the "Term Loans") to the
Borrower during the Term Loan Commitment Period in an aggregate principal amount
not to exceed the amount of such Term Loan Lender's Class B Commitment. Each
Class A Loan and Class B Loan shall be made as part of a Term Loan Borrowing
consisting of Class A Loans and Class B Loans (ratably in accordance with the
respective Class A Commitments and Class B Commitments) made by the Class A
Lenders and the Class B Lenders ratably in accordance with their respective Pro
Rata Shares. The Term Loans shall be available
in not more than two Borrowings: one Borrowing in an amount not exceeding
$130,000,000 for the purposes specified in Section 2.6(a); and another Borrowing
in an amount not exceeding $32,000,000 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 (which shall be not less than $1,000,000 and shall be an
integral multiple of $100,000);
(B) the respective portions of such Term Loan Borrowing
consisting of Class A Loans and Class B Loans, respectively;
(C) the proposed date of such Term Loan Borrowing, which
shall be a Business Day;
(D) the initial Interest Period to be applicable
thereto; and
(E) 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 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 any 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
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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.
(c) Limitation on Term Loan Commitments. The Borrower acknowledges
that, as of the Closing Date, there are no Term Loan Commitments with respect to
the second Borrowing of Term Loans, and that such Term Loan Commitments shall
only become available at such time as one or more Eligible Assignees become Term
Lenders party hereto in accordance with Section 10.17. The Borrower further
acknowledges that neither the Lead Arranger nor the Administrative Agent has
made any representation or warranty as to the availability of or prospects for
any such Eligible Assignee becoming a Term Loan Lender. Neither the Lead
Arranger nor the Administrative Agent has any duty or responsibility to solicit
any such Eligible Assignee.
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 (1) the Revolving Loan Commitment at any given time or (2) the
Borrowing Base as determined on the basis of the most recent monthly operating
report of the Borrower and its Subsidiaries. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrower
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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 Revolving Loan Lender (with a copy thereof
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.
Each Revolving Loan Borrowing Request for a Revolving Loan Borrowing consisting
of LIBOR Revolving Loans must be received by the Revolving Loan Lender (with a
copy thereof to 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
Revolving Loan Lender (with a copy thereof to 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.
(ii) Upon satisfaction of the applicable conditions set forth
in Section 4.3, the Revolving Loan Lender shall, not later than 2:00 p.m.,
New York City time, on the borrowing date specified in such Revolving Loan
Borrowing Request, make the amount of its Revolving Loan available to the
Borrower by wire transfer of such funds in accordance with instructions
reasonably acceptable to the Revolving Loan Lender provided by the
Borrower. Notwithstanding the foregoing, if, at the time of the Borrowing
of such Revolving Loan, the Administrative Agent shall have notified the
Revolving Loan Lender in writing, at least one (1) Business Day prior to
the date of such Borrowing, that a Default or Event of Default has
occurred and is continuing and that
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Revolving Loans may not be made while such Default or Event of Default is
continuing (which notice will be given at the request of the Required
Lenders), the Revolving Loan Lender shall not advance such Revolving
Loans. 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 4.3 have been
satisfied.
(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:
(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 Revolving
Loan Lender (with a copy thereof to 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 (one (1) Business Day before the date of conversion, in the
case of a conversion to a Base Rate Revolving Loan).
(d) Interest for Account of Revolving Loan Lender. Each Revolving
Loan shall bear interest in accordance with Section 2.3. The Revolving Loan
Lender shall be responsible for invoicing the Borrower for interest on the
Revolving Loans. Interest on each Revolving Loan shall be solely for the account
of the Revolving Loan Lender. The Borrower shall make all payments of principal
and interest in respect of the Revolving Loans directly to the Revolving Loan
Lender.
(e) Extension of Revolving Loan Commitment. The Borrower may, by
written notice to the Revolving Loan Lender no later than 90 days prior to the
Revolving Loan Commitment Termination Date then in effect (the "Existing
Revolving Loan Commitment Termination Date"), request that the Revolving Loan
Lender extend the Revolving Loan Commitment Termination Date to the date
proposed by the Borrower in such notice. If the Revolving Loan Lender so agrees
in writing, which shall be in its sole and absolute discretion, the Existing
Revolving Loan Commitment Termination Date shall be extended (effective as of
the Existing Revolving Loan Commitment Termination Date) to the date specified
in such notice
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as confirmed by the Revolving Loan Lender in its written confirmation. The
Revolving Loan Lender will notify the Borrower in writing of its decision no
later than 60 days prior to the Existing Revolving Loan Commitment Termination
Date. If any such extension of the Existing Revolving Loan Commitment
Termination Date shall not become effective, then the Revolving Loan Commitment
shall reduce to zero on the Existing Revolving Loan Commitment Termination Date,
and the Revolving Loan Commitment Termination Date shall remain the Existing
Revolving Loan Commitment Termination Date. If the Revolving Loan Lender shall
not have provided notice of its extension of the Existing Revolving Loan
Commitment Termination Date 60 days prior thereto, the Revolving Loan Lender
shall be deemed to have declined to extend the Existing Revolving Loan
Commitment Termination Date.
Section 2.3 Interest.
(a) Each Term 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 LIBOR Revolving Loan shall bear interest at the LIBOR Market Index
Rate plus the Applicable Margin, and 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 (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the above paragraph (a) of
this Section, or (ii) in the case of any other amount, 2% 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; provided that the applicable Base
Rate or LIBOR with respect to any Revolving Loan shall be determined by the
Revolving Loan Lender, and each 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 a Term Loan in the relevant Borrowing
Request and shall select each subsequent Interest Period for such 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.
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(b) The Term Loans shall at any given time be subject to a single
Interest Period; provided that (i) the initial Interest Period with respect to
the second Borrowing of the Term Loans will commence on the date of such
Borrowing and end on the same day as the current Interest Period for the Term
Loans previously advanced and (ii) if the Borrower elects an Interest Period for
the Term Loans that ends after the next succeeding Repayment Date or Cash Sweep
Date, the Borrower may elect a separate Interest Period ending on such Repayment
Date or Cash Sweep Date for any portion of the Term Loans to be repaid or
projected to be repaid on such date.
(c) No Interest Period shall extend beyond the Maturity Date.
(d) If the Borrower fails to select an Interest Period for a Term
Loan Borrowing or an outstanding Term Loan under paragraph (a) above, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration.
(e) If an Event of Default has occurred and is continuing on the day
on which interest is due and payable for any LIBOR Revolving Loan, then unless
repaid, such Loan(s) shall automatically convert to Base Rate Revolving Loan(s)
on such day.
(f) Promptly following receipt of a notice from the Borrower
selecting an Interest Period, the Administrative Agent shall advise each Term
Loan Lender of the details thereof, and if no timely notice is provided by the
Borrower, the Administrative Agent shall notify each Term Loan Lender of the
details of the applicable Interest Period.
Section 2.5 Repayment of Loans.
(a) Term Loans.
(i) Subject to paragraph (ii) below, so long as any portion of
the Class A Loans remains outstanding, the Borrower shall repay to the
Administrative Agent for the account of the Class A Lenders on each
Repayment Date a portion of the Class A Loans equal in amount to the
Required Class A Loan Repayment Amount.
(ii) Notwithstanding the foregoing, if the funds on deposit in
the Accounts and available for the repayment of Class A Loans are
insufficient as of any Repayment Date to pay the Required Class A Loan
Repayment Amount, the Borrower may, so long as no Event of Default has
occurred and is continuing as of such Repayment Date, defer repayment of a
portion thereof equal to the lesser of (i) such deficiency or (ii) the
Accelerated Class A Loan Amortization Amount.
(iii) 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.
(iv) Principal amounts of Term Loans repaid may not be
reborrowed.
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(b) Revolving Loans. The Borrower shall repay to the Revolving Loan
Lender on the Revolving Loan Commitment Termination Date the aggregate principal
amount of the Revolving Loans outstanding on such date.
Section 2.6 Use of Proceeds of Loans.
(a) Initial Borrowing of Term Loans. The proceeds of the initial
Borrowing of Term Loans shall be used solely (i) to refinance a portion of the
Purchase Price (as defined in the Executive Air Stock Purchase Agreement),
including transaction and bridge financing costs; (ii) to pay fees payable on
the date of the initial Term Loan Borrowing to the Lead Arrangers and the
Administrative Agent; (iii) to make payment of the Debt Service Reserve Required
Balance into the Debt Service Reserve Account as required hereunder; (iv) 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 (v) to pay
other reasonable costs and expenses incurred by the Borrower in connection with
the closing of the Loans.
(b) The proceeds of the second Borrowing of Term Loans shall be used
solely (i) to finance a portion of the purchase price with respect to the
acquisition of GAH, including transaction costs and repayment of existing
Indebtedness; (ii) to pay or reimburse the Borrower for costs and expenses
payable by the Borrower pursuant hereto in connection with such Borrowing; (iii)
to pay the increased amount of the Debt Service Reserve Required Balance as a
result of such Borrowing into the Debt Service Reserve Account, and (iv) to pay
other reasonable costs and expenses incurred by the Borrower in connection with
such Borrowing.
(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, but excluding Expansion Capital Expenditures); 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 unless the Issuing
Bank is satisfied that sufficient funds will be available to permit repayment of
Drawings under any Letter of Credit outstanding as of the date of termination.
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
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in accordance with their respective Class A Commitments and Class B 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 initial Borrowing of Term Loans have not been borrowed on
or before December 31, 2004, 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.
(c) 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) and 2.8(c)(vi)
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. Any
partial prepayment of Class A Loans shall be applied to prepay installments of
Required Class A Loan Repayment Amounts in the reverse order of maturity. 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 or
LIBOR Revolving Loans, and (B) not later than 11:00 a.m. on the proposed
date of prepayment of Base Rate 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.
9
(ii) Promptly following receipt of any such notice of
voluntary prepayment, the Administrative Agent shall advise the applicable
Lenders of the contents thereof. With respect to any proposed prepayment
of Term Loans, the Required Class B Lenders may, not later than three (3)
Business Days after the giving of such notice, elect by written notice to
the Administrative Agent that such prepayment of Term Loans shall be
applied in accordance with clause (B) of Section 2.8(b)(iii).
(iii) Optional prepayments of the Term Loans made pursuant to
this Section 2.8(b) shall be applied (A) to prepay the Class A Loans until
paid in full and thereafter to prepay the Class B Loans or (B) if the
Required Class B Lenders shall so elect in accordance with Section
2.8(b)(ii), pro rata to the Term Loans outstanding.
(iv) 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 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) prepay the Revolving
Loans to the extent Revolving Loans are then outstanding, and (C)
otherwise, Cash Collateralize the outstanding L/C 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 (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, any Loan Party
issues or incurs any Indebtedness for borrowed money, including
Indebtedness evidenced by notes, bonds, debentures or other similar
instruments, but excluding Permitted Indebtedness, the
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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) prepay the Revolving Loans to the extent Revolving Loans are
then outstanding, and (C) otherwise, Cash Collateralize the outstanding
L/C 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, any Loan Party
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 funding of Expansion Capital Expenditures), 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) prepay the Revolving Loans to the extent Revolving Loans are
then outstanding, and (C) otherwise, Cash Collateralize the outstanding
L/C 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 a Loan Party of any Net Insurance Proceeds 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) prepay the Revolving Loans to the extent Revolving Loans are
then outstanding, and (C) otherwise, Cash Collateralize the outstanding
L/C 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 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 it receives such proceeds that it or another 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 Borrower 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 the Borrower 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 on or before September 30, 2005, the Debt Service
Coverage Ratio as of the end of a fiscal quarter of the Borrower is 1.30
to 1.00 or lower for at least two (2) consecutive fiscal quarters, the
monies then on deposit in the Special Reserve Account (inclusive of monies
transferred to the Special Reserve Account in respect of the
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last such fiscal quarter) shall be applied to prepay the Loans. All
prepayments of the Loans then outstanding pursuant to this paragraph (v)
shall be applied, first, to prepay Class A Loans in inverse order of
maturity until the Class A Loans are prepaid in full, second, to prepay
Class B Loans until the Class B Loans are prepaid in full, and thereafter,
to prepay Revolving Loans until the Revolving Loans are prepaid in full.
(vi) On each Cash Sweep Date (or such later date not exceeding
30 days thereafter as the Applicable Cash Sweep Percentage as of such Cash
Sweep Date has been determined), the Applicable Cash Sweep Percentage of
Excess Cash Flow as of such Cash Sweep Date shall be applied to prepay the
Loans. All prepayments of the Loans then outstanding pursuant to this
paragraph (vi) shall be applied, first, to prepay Class A Loans in inverse
order of maturity until the Class A Loans are prepaid in full, second, to
prepay Class B Loans until the Class B Loans are prepaid in full, and
thereafter, to prepay Revolving Loans until the Revolving Loans are
prepaid in full.
(vii) If, as a result of the making of any prepayment required
to be made pursuant to clauses (i) through (vi) of this Section 2.8(c),
the Borrower would incur Hedging Termination Obligations or costs pursuant
to Section 3.5, upon the request of the Borrower made prior to the due
date thereof, the amount of such prepayment may be held in the
Concentration Account until the end of the applicable Interest Period, at
which time such prepayment shall be made.
Section 2.9 Fees.
(a) Commitment Fees. The Borrower agrees to pay (i) to the
Administrative Agent for the account of each Term Lender a commitment fee equal
to 0.50% per annum on the daily amount of the Available Term Loan Commitment of
such Term Lender during the period from and including the Closing Date to but
excluding the last day of the Term Loan Commitment Period, and (ii) to the
Revolving 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 each
year, commencing on the first of such dates to occur after the Closing Date, 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) Upfront Revolving Credit Fee. The Borrower agrees to pay to the
Revolving Loan Lender for its own account an upfront fee equal to 0.75% of the
total amount of the Revolving Loan Commitment, payable on the Initial
Disbursement Date.
(c) Letter of Credit Fees. The Borrower shall pay to the Revolving
Loan Lender a letter of credit fee for each Letter of Credit 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
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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, and on the Letter of Credit Expiration Date.
(d) 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.
(e) Other Fees. The Borrower agrees to pay to the Lead Arranger, 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.
(f) 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.
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
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Administrative Agent (account number 400949687) at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank (ABA
number 0210000210) or such other account as may hereafter be designated by the
Administrative Agent in writing, except that payments in respect of the
Revolving Loans and the Letters of Credit (including any fees relating thereto)
shall be made to the Revolving Loan Lender or the Issuing Bank, as applicable.
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.
(d) The Revolving Loan Lender agrees that it will promptly notify
the Administrative Agent of any defaults in the payment of principal, interest
and fees required to be paid to the Revolving Loan Lender for its own account
pursuant to this Agreement.
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
Class A Loans, Class B 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 Class A Loans,
Class B 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 Class
A Loans, Class B 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 of this paragraph
shall apply). The Borrower consents to the foregoing and agrees, to the extent
it may effectively do so
14
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 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 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) no 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 shall be in a form reasonably acceptable to the
Issuing Bank. The Issuing Bank and the Borrower hereby agree that the existing
letters of credit described under the subheading "Letters of Credit" on Schedule
6.2(a) shall for purposes of this Agreement be deemed to be Letters of Credit
issued by the Issuing Bank under the Letter of Credit Facility, and further, the
Issuing Bank shall be deemed to have sold and transferred to the Revolving Loan
Lender a 100% participation in each such Letter of Credit in accordance with
clause (c) of this Section 2.13.
(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), 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), 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
15
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 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. 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
16
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 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) 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) 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, 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
17
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 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, and costs and expenses
of the Administrative Agent. The obligation of the Lenders under this Section
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, in the case of a LIBOR Revolving
Loan, the LIBOR Market Index Rate, or (b)(i)the Administrative Agent is advised
by the Required Lenders that LIBOR determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
of making or maintaining such Loans for such Interest Period, or (ii) the
Revolving Loan Lender determines that the LIBOR Market Index Rate will not
adequately and fairly reflect the cost to the Revolving Loan Lender of making or
maintaining such Loans, 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
18
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, 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 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
19
(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;
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 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 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 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 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.
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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), 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
21
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 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 3 shall survive
termination of the Commitments and the payment in full of all Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions Precedent to Initial Borrowing of Term Loans.
The obligation of each Lender to advance Term Loans on the Initial
Disbursement Date for Term Loans is 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 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) this 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 Collateral Agency Agreement;
(D) the Security Agreement;
(E) the Intellectual Property Security Agreement;
(F) the Subsidiary Guaranty and the Contribution
Agreement;
(G) the Subsidiary Security Agreement;
22
(H) the Pledge Agreements; and
(I) all other Security Documents.
(ii) A copy of each of the FBO Leases in existence as of the
Closing Date shall have been delivered to the Administrative Agent,
together with a certificate of a Responsible Officer of the Borrower
certifying as of the Closing 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) 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 Investors for newly issued capital
stock of the Borrower in an amount not less than $100,000,000, which amount
shall be increased dollar for dollar for any increase in the Purchase Price (as
defined in the Executive Air Stock Purchase Agreement) for the Executive Air
Acquisition in excess of $217,000,000.
(c) Lender Hedging Agreements. The Borrower shall have entered into
Lender Hedging Agreements satisfactory to the Administrative Agent, which
agreements shall provide coverage in a notional amount equal to at least 75% of
the Loans to be advanced on the Initial Disbursement Date and for a duration of
at least five (5) years from the Initial Disbursement Date.
(d) Organizational Documents. The Administrative Agent shall have
received from or on behalf of each Loan Party and Investor:
(i) the certificate of incorporation, articles of
incorporation, certificate of limited partnership, articles of
organization or comparable document of such Loan Party or Investor,
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 or
formation;
(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 or formation stating that such Loan Party or Investor 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 or Investor, dated the Closing
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 such Loan Party or Investor as in effect on the
Closing Date; (B) 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 Investor (or other comparable enabling action) and
continuing in effect, which authorize the execution, delivery and
performance by such Loan Party or Investor of the Loan Documents to be
executed by such Loan Party or Investor and the consummation of the
transactions contemplated thereby; and (C) there are no proceedings for
the dissolution or liquidation of such Loan Party or Investor; and
23
(iv) a certificate of the Secretary or an Assistant Secretary
(or comparable officer) of such Loan Party or Investor, dated the Closing
Date, certifying the incumbency, signatures and authority of the officers
of such Loan Party or Investor authorized to execute, deliver and perform
the Loan Documents to be executed by such Loan Party or Investor.
(e) Financial Statements, Financial Condition, etc. The Borrower
shall have delivered to the Administrative Agent:
(i) audited Financial Statements of Executive Air as of and
for the year most recently ended more than 90 days prior to the date of
the initial Disbursement Date, its unaudited Financial Statements as of
and for the fiscal quarter most recently ended more than 45 days prior to
the initial 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 Executive Air 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
Borrower as to the financial condition and solvency of the Borrower and
its Subsidiaries (after giving effect to the Executive Air Acquisition and
the incurrence of Indebtedness relating thereto); and
(iv) such other financial, business and other information
regarding the Investors, 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) 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 Administrative Agent and the Collateral Agent
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
24
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) a control agreement for each bank at which any Loan Party
maintains a deposit account (including the account holding any amount held
in escrow pursuant to the terms of the Executive Air Stock Purchase
Agreement), 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) a control agreement for each securities account at which
any Loan Party 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 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.
(g) 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
Initial Disbursement Date, of:
(i) ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and each other
Loan Party;
(ii) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP; special Connecticut counsel to the
Borrower and certain of the Loan Parties;
(iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special Louisiana counsel to the
Borrower and certain of the Loan Parties;
(iv) ▇▇▇▇▇▇▇▇▇▇▇ & Price, LLP, special Texas counsel to the
Borrower and certain of the Loan Parties;
(v) Mallesons, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, special Australian counsel to
Macquarie International Investments Pty Limited; and
25
(vi) ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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.
(h) 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.
(i) Accounts; Funding of Reserves. 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. 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 proceeds of the
Borrowing of Loans.
(j) Governmental Approvals and FBO Leases. All Governmental
Authorizations with respect to operation of the businesses of the Loan Parties
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 FBO Lease or Governmental
Authorization that could reasonably be expected to have a Material Adverse
Effect or permit any party to a FBO Lease to terminate such document or suspend
its performance thereunder.
(k) Representation and Warranties. The representations and
warranties set forth in Article 4 of the Executive Air Stock Purchase Agreement
shall be true and correct in all material respects. The initial Borrowing of
Term Loans 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.
(l) Payment of Purchase Price, Indebtedness, Fees, etc. The
Administrative Agent shall have received evidence satisfactory to it (i) that
the Purchase Price (as defined in the Executive Air Stock Purchase Agreement)
has been paid in full, other than any adjustment thereto in accordance with the
Executive Air Stock Purchase Agreement that is not yet due and payable, (ii)
that all existing Indebtedness of the Loan Parties has been or concurrently with
the Initial Disbursement Date is being repaid in full (other than Permitted
Indebtedness), and (iii) that 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.
26
(m) 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 Second Borrowing of Term Loans.
The obligation of each Lender to advance Term Loans on the Second
Disbursement Date for Term Loans is 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 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) a Pledge Agreement with respect to 100% of the
Equity Securities of each Person who has become a Loan Party
subsequent to the initial Disbursement Date, to the extent such
pledge is permitted under the applicable FBO Leases; and
(B) Appropriate amendments to the Subsidiary Security
Agreement, the Subsidiary Guaranty Agreement, the Contribution
Agreement, and any other Security Document necessary to reflect such
additional Loan Party or Loan Parties, each in form and substance
satisfactory to the Administrative Agent.
(ii) A copy of each of the FBO Leases in existence and not
otherwise delivered to the Administrative Agent as of the Initial
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 Second 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) Additional Underwriting Commitments and/or Equity Contributions.
(i) One or more (but in any case, not more than two) Eligible
Assignees, each approved by the Borrower, HSH Nordbank AG and Macquarie
Bank, Limited (such approvals not to be unreasonably withheld), shall have
become a Lender party hereto in accordance with Section 10.17 with total
Commitments of such new Lender or Lenders consisting of Term Loan
Commitments sufficient, together with additional equity contributions by
the Investors, to allow (x) HSH Nordbank AG to reach a facility
underwriting commitment of $65,000,000 (or such greater amount as HSH
Nordbank AG may agree in its sole discretion) and (y) Macquarie Bank
Limited to reach a facility underwriting commitment of $40,000,000 (or
such greater amount (not to exceed 40% of the aggregate Commitments of all
Lenders) as Macquarie Bank Limited may agree in its
27
sole discretion), in each case after giving effect to the Second
Disbursement Date for Term Loans and any assignments of Loans and
Commitments by HSH Nordbank AG and Macquarie Bank Limited concurrently
with or prior to such Second Disbursement Date. Such new Term Loan
Commitments shall be allocated between the Class A Commitments and Class B
Commitments in the same proportions as the respective Class A Commitments
and Class B Commitments of the Lenders party hereto as of the Closing
Date. Any new such Lender may be Macquarie Bank Limited, but only so long
as its total Commitments (including its existing Commitments) do not
exceed 40% of the aggregate Commitments of all Lenders after giving effect
to the Second Disbursement Date for Term Loans and any assignments of
Loans and Commitments by HSH Nordbank AG and Macquarie Bank Limited after
the Closing Date.
(ii) Each such new Lender shall have entered into an
Assignment and Assumption with each of HSH Nordbank AG and Macquarie Bank,
Limited agreeing to purchase and assume its Pro Rata Share of the Term
Loans advanced on the Initial Disbursement Date and shall have paid the
purchase price payments thereunder.
(iii) Each such new Lender shall have delivered to the
Administrative Agent an Administrative Questionnaire and any required tax
forms.
(c) 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 Investors for newly issued
capital stock of the Borrower in an amount not less than $120,000,000, inclusive
of the contributions made prior to the initial Borrowing of Term Loans, which
amount shall be increased dollar for dollar for any increase in the Purchase
Price (as defined in the GAH Purchase Agreement) for the General Aviation
Acquisition in excess of $48,500,000.
(d) Lender Hedging Agreements. The Borrower shall have entered into
Lender Hedging Agreements satisfactory to the Administrative Agent, which
agreements shall provide coverage in a notional amount equal to at least 75% of
the Loans to be advanced on the Second Disbursement Date and for a duration of
at least five (5) years from the Second Disbursement Date.
(e) Organizational Documents. The Administrative Agent shall have
received from or on behalf of each Person who has become a Loan Party subsequent
to the First 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 Second 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 Second
Disbursement Date by the Secretary of State (or
28
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 Second 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 such Loan Party as in effect on the Second
Disbursement Date; (B) 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 (C) 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 Second 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.
(f) Financial Statements, Financial Condition, etc. The Borrower
shall have delivered to the Administrative Agent:
(i) audited Financial Statements of GAH as of and for the year
most recently ended more than 90 days prior to the date of the Second
Disbursement Date, its unaudited Financial Statements as of and for the
fiscal quarter most recently ended more than 45 days prior to the Second
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 GAH 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
Borrower as to the financial condition and solvency of the Borrower and
its Subsidiaries (after giving effect to the Executive Air Acquisition and
the General Aviation Acquisition and the incurrence of Indebtedness
relating thereto); and
(iv) such other financial, business and other information
regarding the Investors, 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
29
contingent liabilities, tax matters, environmental matters and obligations
for employee benefits and compensation.
(g) 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 Administrative Agent and the Collateral Agent
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 Collateral acquired subsequent to the
Initial 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) a control agreement for each bank at which any Loan Party
who has become a Subsidiary subsequent to the Initial Disbursement Date
maintains a deposit account (including the account holding any amount held
in escrow pursuant to the terms of the GAH Purchase Agreement), 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) a control agreement for each securities account at which
any such Loan Party 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 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.
30
(h) 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, dated the Second
Disbursement Date and in customary form and substance satisfactory to the
Administrative Agent with respect to each additional Loan Party who has become a
Subsidiary subsequent to the Initial Disbursement Date and such matters as the
Administrative Agent may reasonably request.
(i) 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.
(j) Governmental Approvals and FBO Leases. All Governmental
Authorizations with respect to operation of the businesses of the Loan Parties
who have become Subsidiaries of the Borrower subsequent to the Initial
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 related FBO
Lease or Governmental Authorization that could reasonably be expected to have a
Material Adverse Effect or permit any party to such FBO Lease to terminate such
document or suspend its performance thereunder.
(k) Representation and Warranties. The representations and
warranties set forth in Article 4 of the GAH Purchase Agreement shall be true
and correct in all material respects. The Borrowing of Term Loans on the Second
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.
(l) Payment of Purchase Price, Indebtedness, Fees, etc. The
Administrative Agent shall have received evidence satisfactory to it (i) that
the Purchase Price (as defined in the GAH Purchase Agreement) has been paid in
full, other than any adjustment thereto in accordance with the GAH Purchase
Agreement that is not yet due and payable.
(m) Disclosure Schedules. The Borrower shall have delivered to the
Administrative Agent any revisions to the disclosure schedules attached to this
Agreement or other disclosure of exceptions to the representations and
warranties and covenants set forth in the Loan Documents relating to GAH and its
Subsidiaries, 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 Required Lenders prior to the Second Disbursement Date.
(n) Environmental Liability. The Administrative Agent shall have
received evidence satisfactory to it that neither GAH nor any of GAH's current
or former subsidiaries has
31
any liability under any Environmental Laws, which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
(o) 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 4.3 Conditions Precedent to All Loans.
The obligation of each Lender to advance Loans on a Disbursement Date
(including the disbursement of Loans on the Initial Disbursement Date and the
Second 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 Credit Loans and the initial
issuance of a Letter of Credit, the initial 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 Event of Default or event or occurrence, which,
with the passage of time or the giving of notice or both, would become a
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.
(f) Debt Service Reserve Account. The Debt Service Reserve Account
shall have been funded in an amount equal to not less than the Debt Service
Reserve Required Balance.
32
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 (e)
of this Section 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.
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
33
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.
(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 Acquisitions or 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 Loan Parties 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,
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. No Loan Party 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 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 Administrative Agent in
connection herewith or any other Loan Document or (B) the exercise by the
Administrative 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.
Section 5.6 No Violation or Default.
No Loan Party 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. Without limiting
the generality of the foregoing, no Loan Party (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
34
to have a Material Adverse Effect. 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 Loan Party
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, 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 or 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. Each
of the Loan Parties has complied with all material obligations under all leases
to which it is a party and enjoys peaceful and undisturbed possession under such
leases. Neither the Borrower nor any of its Subsidiaries owns any real property.
(b) Each the Loan Parties owns and has good and marketable title, or
a valid leasehold interest in, all Property necessary in its business as
currently conducted and as currently proposed to be conducted. Such Properties
are subject to no Liens other than Permitted Liens.
Section 5.9 Financial Statements.
The Financial Statements of the Loan Parties which have been delivered to
the Administrative Agent (i) are in accordance with the books and records of the
Loan Parties, as applicable, 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 the Loan Parties taken as a whole; and (iii) fairly
present in all material respects the financial conditions and results of
operations of the Loan Parties, respectively, as of the date thereof and for the
period covered thereby. No Loan Party has 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, 2003, furnished to the Administrative
Agent prior to the Closing Date, or in the Financial Statements
35
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.
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 Administrative Agent for the benefit of itself and the
Lenders, 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 Loan Parties 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 Loan
Party to issue, deliver or sell, or cause to be issued, delivered or sold, any
additional Equity Securities of any Loan Party, or obligating any Loan Party to
grant, extend or enter into any such agreement or commitment. All Equity
Securities of each 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.
Section 5.12 No Agreements to Sell Assets; Etc.
No Loan Party has 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
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) As of the Closing Date, based upon the latest valuation of each
Plan of that Loan Party or any ERISA Affiliate maintains or contributes to, or
has any obligation under, the aggregate benefit liabilities of such plan within
the meaning of section 4001 of ERISA did not exceed the aggregate value of the
assets of such plan. Except as set forth on Schedule 5.13, as of the Closing
Date, no Loan Party has 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 any liability
which is reasonably expected to have a Material Adverse Effect.
36
(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 any Loan Party 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 any Loan Party or any ERISA Affiliate is legally valid and
binding and in full force and effect. Except as set forth on Schedule 5.13, 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, to the knowledge of
Borrower, threatened material claim or suit other than claims for benefits in
the ordinary course. None of the Loan Parties and the ERISA Affiliates nor 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) As of the Closing Date, except as set forth on Schedule 5.13,
none of the Loan Parties and the ERISA Affiliates contributes to or has any
material contingent obligations to any Multiemployer Plan. None of the Loan
Parties and the ERISA Affiliates has incurred 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. None of the
Loan Parties and 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.
Section 5.14 Other Regulations.
No Loan Party 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 Loan Parties 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 Loan Party which is registered with any Governmental
Authority is set forth on Schedule 5.15. The Loan Parties 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 ▇▇▇▇, 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
37
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 ▇▇▇▇, patent, copyright, license or other
intellectual property right of any of the Loan Parties.
Section 5.16 Governmental Charges.
Each of the Loan Parties has filed or caused to be filed all tax returns
which are required to be filed by it. Each of the Loan Parties 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 Loan Party from their 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. None of the Loan Parties have 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.
No Loan Party 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 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 Loan Parties is Solvent and, after the execution and delivery
of the Loan Documents and the consummation of the transactions contemplated
thereby and of the Acquisitions, will be Solvent.
38
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 Loan
Party 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 the Borrower or any of its Subsidiaries
is a party with any third party;
(ii) each lease of real property to which the Borrower or one
of its Subsidiaries is a party, including all FBO Leases, and each lease
of personal property to which the Borrower or one of its Subsidiaries is a
party that in any such case has rent payable by a Loan Party after the
date hereof in excess of $100,000 per annum;
(iii) each agreement of the Borrower and its Subsidiaries
relating to indebtedness for borrowed money (whether incurred, assumed,
guaranteed or secured by any asset);
(iv) 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;
(v) 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;
(vi) each policy of insurance; and
(vii) each agreement which has aggregate expenditure
obligations of $150,000 or more to any Person.
(b) Each of the FBO Leases has a term and renewal period as set
forth in Schedule 5.21, such FBO Leases are in full force and effect, are valid
and binding, and enforceable against the Borrower and its Subsidiaries, as
applicable, and, to the knowledge of the Loan Parties, the other parties thereto
in accordance with their respective terms. Neither the Borrower nor any of its
Subsidiaries, nor, to 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 FBO Lease, including any minimum service
requirements under any FBO Lease and no event has occurred that with the passage
of time or the giving of notice or both
39
would constitute a default by the Borrower or any Subsidiary or, to the
Borrower's knowledge, any other party under any material provision thereof
entitling the termination of such FBO Lease.
(c) Except as disclosed in Schedule 5.21, no material supplier to or
landlord of the Borrower or any of its Subsidiaries, including any party to the
FBO Leases, or any Governmental Authority has taken, and neither the Borrower
nor any of its Subsidiaries have received any written notice that, any material
supplier to or landlord of the Borrower or any of its Subsidiaries, including
any party to any of the FBO Leases, or any Governmental Authority contemplates
taking, any steps to terminate the business relationship of the Borrower or any
of its Subsidiaries with such supplier or landlord, including any party to the
FBO Leases, which would reasonably be expected to have a Material Adverse
Effect.
(d) None of the Loan Parties nor 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 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, the transactions contemplated thereby and the Acquisitions 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 Acquisitions or 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
40
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 Loan Parties as of the Closing Date. Such insurance has not
been terminated and is in full force and effect, and each of the Loan Parties
has taken all action required to be taken as of the date of this Agreement to
keep unimpaired its rights thereunder in all material respects. The Properties
of the Loan Parties 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 Loan Parties 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 Loan Parties as of the Closing Date.
Section 5.27 Agreements with Affiliates and Other Agreements.
Except as disclosed on Schedule 5.27, no Loan Party has entered into and,
as of the Initial 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
the 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 Acquisitions.
The Executive Air Acquisition has been conducted in compliance with
Delaware corporate law. The shareholders of Executive do not have any dissenting
shareholder's rights in connection with the Executive Air Acquisition.
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, and will cause
compliance by the other Loan Parties, 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:
41
(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
(prepared on a consolidated basis) 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 (prepared on a
consolidated basis) 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 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 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 in substantially the
form of Exhibit D-1 (a "Leverage Ratio Certification") which (A) states
that no Default or Event of Default has occurred and is continuing, or, if
any such Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof and what action Borrower proposes to
take with respect thereto and (B) sets forth, for the quarter or year
covered by such Financial Statements or as of the last day of such quarter
or year (as the case may be), the calculation of the Leverage Ratio as of
the last day of such period and for the twelve month period ending on such
date;
(v) no later than twenty (20) days after the last day of each
fiscal quarter of the Borrower, a certificate of the president, chief
financial officer or treasurer of the Borrower, in substantially the form
of Exhibit D-2 (a "Debt Service Coverage Ratio Certification"), certifying
as to the Debt Service Coverage Ratio for the twelve-month
42
period ending on the last day of such fiscal quarter, together with
reasonably detailed information and calculations attached thereto
supporting such certification; and
(vi) 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
Loan Party 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 Borrower or
any Guarantor involving potential monetary damages payable by any 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 the Borrower or any Guarantor; (II) any dispute, litigation,
investigation, proceeding or suspension between the Borrower or any
Guarantor and any Governmental Authority; or (III) the commencement of, or
any material development in, any litigation or proceeding affecting the
Borrower or any Guarantor, 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 (B) projected consolidated Financial
Statements of the Loan Parties for the following fiscal year;
(iii) as soon as possible and in no event later than ten (10)
days prior to the acquisition by any Loan Party of any material leasehold
or ownership interest in real property, a written supplement to Schedule
5.8;
43
(iv) as soon as possible prior to the occurrence of any event
or circumstance that would require a prepayment pursuant to Section
2.8(c), the statement of a Responsible Officer of the Borrower setting
forth the details thereof;
(v) as soon as possible and in no event later than five (5)
Business Days after the receipt thereof by any Loan Party, 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 liability of any Loan Party for Environmental Damages, where
any such violation is reasonably likely to involve compliance costs in
excess of $500,000 or to have a Material Adverse Effect; and
(vi) such other instruments, agreements, certificates,
opinions, statements, documents and information relating to the
Properties, operations or condition (financial or otherwise) of the Loan
Parties, 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 Loan Parties shall at all times keep
proper books of record and account in which full, true and correct entries will
be made of their transactions in accordance with GAAP.
(d) Inspections. The Loan Parties shall 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 Loan Parties, to conduct audits
of any or all of the Collateral, to examine the books and records of the Loan
Parties and make copies thereof, and to discuss the affairs, finances and
business of the Loan Parties 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 Loan Parties shall:
(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) furnish to any Lender, upon written request, certificates
of insurance in a form reasonably acceptable to the Lender as to the
insurance carried;
44
(iii) 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
(iv) 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 the Collateral
Agent as lender's loss payee;
provided that if any Loan Party shall fail to maintain insurance in accordance
with this Section 6.1(e), or if any Loan Party 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 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) provide for at
least thirty (30) days' prior written notice to each insured and each loss payee
named therein of the date on which such policies shall terminate by lapse of
time if not renewed, (iii) 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, (iv) insure the Collateral Agent and
any other additional insured or loss payee regardless of any breach or violation
by the Loan Parties or any other Person of any warranties, declarations, or
conditions contained in the policies related to such insurance, (v) 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 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, (vi) 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, (vii)
provide that no Person other than the Loan Parties shall have any liability for
any premiums with respect thereto, and (viii) 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 the insurance policies provided or obtained by any Loan Party
(whether or not required to be carried by the Lenders under the Loan Documents),
including any property and business interruption policies, but excluding
coverage for workers' compensation, employees'
45
liability and general liability, shall be paid by the respective insurers
directly to the Operating Account held by such Loan Party.
(f) Governmental Charges and Other Indebtedness. Each Loan Party
shall promptly pay and discharge 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 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. Each of the Loan Parties shall (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) 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.
Each Loan Party shall 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.
(j) Additional Collateral. If at any time from and after the Closing
Date any Loan Party 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
46
(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 an FBO Lease, 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 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 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 Lenders a valid,
legal and perfected first-priority security interest in and lien on 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 section.
(l) Lender Hedging Agreements. The Borrower shall enter into (and
maintain) Lender Hedging Agreements in accordance with the requirements of
Section 4.1(d).
(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) Step-in Rights. If at any time the Debt Service Coverage Ratio
shall be less than 1.10 to 1.00, the Administrative Agent shall have the right
to evaluate the Borrower's operations (in consultation with an aviation industry
adviser and/or legal adviser) and thereafter provide reasonable written
instructions for specific actions to be taken by the Borrower to improve the
performance of the businesses and operations of the Loan Parties. The Borrower
shall comply with such instructions so long as the performance of such specific
actions shall be
47
permitted (and not prohibited) by the Material Documents and all applicable
Legal Requirements and Governmental Authorizations.
(o) 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 that: (i) all of the restoration work already completed was
done substantially in compliance with the approved Restoration Plan, (ii)
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), (iii) 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, (iv) 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
48
Subordinated Debt (in each case, by the Investors 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.
(p) Environmental Management System . The Borrower shall develop and
implement an environmental management system, which will 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; and systematic record keeping and management review of budgets and
expenses relating to cleanup and compliance with Environmental Laws. The
Borrower shall certify the completeness and implementation of such a program on
or before one hundred twenty (120) days after the Closing Date. Upon the
Administrative Agent's reasonable request, and at Borrower's sole cost and
expense, 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 Borrower's environmental management
system is reasonable and customary, and could reasonably be expected to
identify, remedy and manage material environmental liabilities and/or cleanup
obligations.
(q) 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.
(r) Cash Management Procedures; Payments to Reserve Accounts .
(i) The Borrower hereby confirms that the Loan Parties have
previously established in the respective names of such Loan Parties the
bank accounts listed as "Operating Accounts" specified on Schedule 5.26
(each such account, an "Operating Account"). The Borrower and the other
Loan Parties 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 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.
49
(ii) Any Loan Party 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 any Loan Party
maintains 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) agree to provide monthly and annual statements as to such Operating
Account to the Administrative Agent concurrently with the delivery thereof
to the applicable Loan Party.
(iii) The Borrower shall cause amounts held in the Operating
Accounts 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 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) If, as of the last day of any fiscal quarter of the
Borrower occurring on or prior to September 30, 2005, the Debt
Service Coverage Ratio as of such date is 1.30 to 1.00 or lower, the
Borrower shall promptly (as in any event within two Business Days)
after such Debt Service Coverage Ratio has been calculated, transfer
to the Special Reserve Account an amount equal to the Excess Cash
Flow as of the last day of such fiscal quarter.
(C) Promptly (as in any event within two Business Days)
after 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 Excess Cash Flow;
provided that if the Borrower is permitted to make a Distribution of
such amounts to the Investors in accordance with Section 6.2(f),
such amounts may be paid by the Borrower directly to the Investors.
(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(r)(iii).
50
(s) Assignment of FBO Leases. As promptly as possible after the
Closing Date, the Borrower shall request in writing, and shall use all
commercially reasonable efforts to obtain from each Airport Authority, a written
consent with respect to the collateral assignment of the applicable Borrower
Subsidiary's interest in the relevant 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) cause the execution
and recording of such leasehold deed of trust or mortgage at its sole cost and
expense.
(t) Stock Pledge of Certain Borrower Subsidiaries.
(i) If the Borrower is unable to obtain the consent of the
Airport Authority for ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Airport to the pledge of the stock
of the Subsidiaries party to the Hartford Leases (each, a "Hartford
Lessee") within 60 days after the Closing Date, the Borrower shall, at its
sole cost, promptly cause the Hartford Lessees to be directly and
wholly-owned by a single-purpose entity owning only the stock of such
Hartford Lessees (which entity shall also be a Subsidiary of the
Borrower). The stock of such immediate parent entity shall be pledged in
favor of the Collateral Agent.
(ii) If the Borrower is unable to obtain the consent of the
Airport Authority for ▇▇▇▇ ▇▇▇▇▇ Airport, Orange County, California, to
the pledge of the stock of the Newport Lessee within 60 days after the
closing of the General Aviation Acquisition, the Borrower shall, at its
cost, promptly cause the Newport Lessee to be directly and wholly-owned by
a single-purpose entity owning only the stock of the Newport Lessee (which
entity shall also be a Subsidiary of the Borrower) The stock of such
immediate parent entity shall be pledged in favor of the Collateral Agent.
(u) Security Interest in Fuel Trucks. No later than 30 days after
the Closing Date, the Borrower, at its sole cost and expense, shall (i) cause
the Collateral Agent to be registered as the lienholder on the certificates of
title or ownership relating to the fuel trucks and other motor vehicles owned by
certain of the Loan Parties and described in Schedule 6.1(u) attached hereto,
and (ii) deliver to the Collateral Agent originals of all such certificates of
title or ownership for such vehicles, together with the odometer statements for
each such vehicle if not otherwise part of the certificate of title. The
Borrower shall take, and shall cause each other Loan Party to take, all such
other actions as are necessary or as the Collateral Agent may deem desirable to
perfect the security interest of the Secured Parties in such Collateral. So long
as no Event of Default has occurred and is continuing, the Administrative Agent
will promptly authorize a release of any such Collateral in order to permit a
sale or other transfer by the relevant Loan Parties to third parties.
(v) Closing of Operating Accounts.
(i) No later than 30 days after the Closing Date, the
Borrower, at its sole cost and expense, shall cause the Loan Parties
holding the following bank accounts to close such accounts and direct the
full balance in each such account to be withdrawn and transferred to
another Operating Account that is subject to a Control Agreement or to a
51
new Operating Account established and maintained in accordance with
Section 6.1(r)(ii): (A) the deposit account (no. 0104-000309) held by
Atlantic Aviation Corporation at Bank of America; (B) the deposit accounts
(nos. ▇▇▇▇▇▇▇▇▇▇, 0713491132, 0713492228, 0715059963, and 0713492236) held
by General Aviation, LLC and General Aviation of New Orleans, LLC, as
applicable, at Whitney National Bank; (C) the deposit account (no.
015-▇▇▇▇▇▇▇▇) held by Atlantic Aviation Corporation at JPMorgan Chase
Bank; and (D) the deposit account (no. 0517005305) held by Flightways of
Long Island, Inc. at State Bank of Long Island. The Borrower shall deliver
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 (i).
(ii) As promptly as possible, and in any event no later than
30 days after the Closing Date, the Borrower shall obtain a Control
Agreement in form and substance satisfactory to the Administrative Agent
with respect to the three bank accounts (and associated lockboxes) held by
Atlantic Aviation Corporation at PNC Bank; provided that if the Borrower
is not able to obtain the Control Agreement within such time period, the
Borrower, at its sole cost and expense, shall cause such accounts to be
closed and the full balance in each such account to be withdrawn and
transferred to another Operating Account that is subject to a Control
Agreement or to a new Operating Account established and maintained in
accordance with Section 6.1(r)(ii), no later than 90 days after the
Closing Date.
(iii) The Borrower (or applicable Loan Party) 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(s) will be terminated or otherwise will no longer 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(s) 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(r)(ii).
(w) Equity Contributions by MIC to pay certain Fees and Expenses.
The Borrower has incurred obligations to pay certain fees and expenses relating
to the Executive Air Acquisition and the General Aviation Acquisition, which
fees and expenses have either been paid by Macquarie Bank Limited or its
Affiliate (other than the Borrower) or remain unpaid as of the Closing Date,
which fees and expenses are estimated as of the Closing Date at approximately
$14,400,00. The Borrower agrees (and has agreed with Macquarie Infrastructure
Company Inc. ("MIC")) that such fees and expenses and any reimbursement
obligation to Macquarie Bank Limited or its Affiliate relating thereto will be
paid by MIC out of its own funds, which payments by MIC shall be booked as
equity contributions to the Borrower. After such capital contributions have been
made, the Borrower shall promptly confirm to the Administrative Agent the total
amount of equity contributions to the Borrower as of such date.
52
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 the other Loan Parties to do any of the following, unless the Required
Lenders shall have otherwise consented in writing:
(a) Indebtedness and Guarantee Obligations. None of the Loan Parties
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 Loan Parties
under the Loan Documents;
(ii) Indebtedness of the Loan Parties listed in Schedule
6.2(a) and existing on the date of this Agreement, all of which
Indebtedness identified in Schedule 6.2(a) as being repaid in connection
with the initial Borrowing shall be repaid concurrently with such
Borrowing;
(iii) Guarantee obligations of any Loan Party in respect of
Permitted Indebtedness of any other Loan Party;
(iv) Permitted Subordinated Debt of the Borrower;
(v) Indebtedness of the Loan Parties under Lender Hedging
Agreements entered into with respect to the Loans in accordance with
Section 4.1(d);
(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 the
Subsidiaries taken as a whole, incurred after the Closing Date shall not
exceed $1,500,000 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 Loan Parties shall create,
incur, assume or permit to exist any Lien on or with respect to any of its
Property with respect to any of its Property, in either case whether now owned
or hereafter acquired, except for the following ("Permitted Liens"):
(i) Liens in favor of the Administrative Agent or any Lender
under the Loan Documents;
(ii) Liens listed in Schedule 6.2(b) and existing on the date
of this Agreement, all of which Liens that secure Indebtedness that is
identified in Schedule 6.
53
2(a) as being repaid in connection with the initial Borrowing of 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 any Loan
Party 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 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 any Loan Party;
(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 o 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 clause (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 of the Airport Authorities as provided in the FBO
Leases or under applicable law.
(c) Asset Dispositions. None of the Loan Parties shall directly or
indirectly, sell, lease, convey, transfer or otherwise dispose of any Property,
whether now owned or hereafter acquired, or enter into any agreement to do any
of the foregoing, except for the following:
54
(i) sales by the Loan Parties of inventory to Persons in the
ordinary course of their businesses, including, intercompany sales of
inventory by a Loan Party to another Loan Party;
(ii) sales or other dispositions by the Loan Parties 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 any Loan Party of
Investments permitted by Section 6.2(e)(ii) for not less than fair market
value;
(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); and
(v) the sale by the Borrower of all the property, assets and
rights acquired by it under the GAH Purchase Agreement to an Affiliate of
the Investors, in accordance with Section 10.17(c).
(d) Mergers, Acquisitions, Etc. None of the Loan Parties 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, provided that the Borrower
and the other Loan Parties may merge with each other, (and with other
Subsidiaries of the Borrower which become Loan Parties), and provided 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 Loan Parties shall make any Investment
except for Investments in the following:
(i) Investments by the Loan Parties in cash and Cash
Equivalents;
(ii) Investments listed in Schedule 6.2(e) existing on the
date of this Agreement;
(iii) Investments by the Borrower or 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 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
55
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. None of the Loan Parties shall make any
Distributions or set apart any sum for any such purpose, except (i) a Subsidiary
of the Borrower may make Distributions to another Subsidiary of the Borrower or
to the Borrower; (ii) the Borrower may make cash Distributions to the Investors
in an amount equal to Cash Available for Distribution as of the last day of any
fiscal quarter if the following conditions have been met: (A) the Debt Service
Coverage Ratio as of such date was greater than 1.30:1.00, as evidenced by a
certificate delivered by the Borrower to the Administrative Agent no later than
three (3) Business Days prior to the proposed date of Distribution; (B) no
Default or Event of Default shall have occurred and be continuing as of the date
of such Distribution; (C) the cash sweep prepayment, if any, for such fiscal
quarter shall have been paid to the Administrative Agent; and (D) the
Administrative Agent shall have received notice from the Borrower of such
Distribution in writing certifying that the foregoing conditions (A) through (C)
have been met; and (iii) the Borrower may redeem the outstanding preferred
shares of the Borrower held by Macquarie International Investments Pty Limited,
an Australian company.
(g) Change in Business. None of the Loan Parties shall engage,
either directly or indirectly, in any business other than the business conducted
by the Borrower and its Subsidiaries as of the Closing Date or any business
substantially related or incidental thereto, or enter into any new FBO Leases
other than for locations at municipal airports within the United States.
(h) Payments of Indebtedness, Amendments to Documents. None of the
Loan Parties 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 Obligations); (ii)
amend, modify or otherwise change the terms of any document, instrument or
agreement evidencing the 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) amend, modify or otherwise change the payment terms of the
Executive Air Stock Purchase Agreement or the GAH Purchase Agreement 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 Loan Parties 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
56
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);
(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 Loan Parties shall enter into any Contractual
Obligation with any Affiliate (other than any other Loan Party) 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.
(k) Accounts. None of the Loan Parties shall maintain banking
accounts or securities accounts other than (i) the Accounts, (ii) the bank
accounts and securities accounts listed in Schedule 5.26, (iii) and additional
bank accounts and securities accounts established after the Closing Date for the
working capital needs of any Loan Party 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
depositary bank or securities intermediary at which such account is maintained.
(l) Accounting Changes. None of the Loan Parties 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 Loan Parties shall (i) cancel
or terminate or replace any Material Document, (ii) consent to or accept any
cancellation or termination of any Material Document (other than as permitted
without the consent of any 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 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
57
vary, or agree 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 Loan Parties shall enter into any
Joint Venture.
(o) Management Fees. None of the Loan Parties shall pay any
management fees other than (i) management fees paid by a Loan Party to another
Loan Party or Loan Parties, (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), and (iii)
reasonable overhead sharing fees payable to Affiliates of the Investors for
legal, accounting, tax, computer and other centralized management services
provided to the Loan Parties and other FBO operators owned by the Investors in
lieu of such Loan Parties and other FBO operators having their own employees for
such functions.
(p) Jurisdiction of Formation. None of the Loan Parties shall change
its respective jurisdiction of formation except upon not less than ninety (90)
days prior written notice to the Administrative Agent.
(q) Sales and Leaseback; Off-Balance Sheet Financing. None of the
Loan Parties 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.
(r) Expansion Capital Expenditures. None of the Loan Parties 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 Investors.
Section 6.3 Leverage Ratio.
Until the termination of the Commitments and the satisfaction in full by
the Borrower of all Obligations, the Borrower shall not permit, as of the last
day of any fiscal quarter occurring during the periods below, the Leverage Ratio
of the Loan Parties on a consolidated basis to be greater than the amount
permitted at such time below, unless the Required Lenders shall otherwise
consent in writing:
Maximum
Fiscal Quarters Ending Leverage Ratio
---------------------- --------------
After the Closing Date through and including 6.00 to 1.00
September 30, 2005
After September 30, 2005 through and including 5.50 to 1.00
September 30, 2006
58
After September 30, 2006 through and including 5.00 to 1.00
September 30, 2007
After September 30, 2007 through and including 4.50 to 1.00
September 30, 2008
Each fiscal quarter ending after 4.00 to 1.00
September 30, 2008
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 Payment 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(r) and such
failure shall continue unremedied for a period of five (5) 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 ten (10) Business Days after notice thereof
from the Administrative Agent to the Borrower (which notice will be given at the
request of the Required Lenders).
(b) the Borrower shall fail to comply with any covenant or agreement
contained in Section 6.1(g), Section 6.1(h)(i), Section 6.1(j), Section 6.1(k),
Section 6.1(m), Section 6.2 or Section 6.3; 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 Guaranty or Security Document
and such default shall continue beyond any period of grace provided with respect
thereto; or
(e) the Borrower or any 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) or (d) above), and such
failure is not remedied within 30 days after
59
notice thereof from the Administrative Agent to the Borrower (which notice will
be given at the request of the Required Lenders); or
(f) any representation or warranty made by the Borrower or any Loan
Party in any Loan Document to which it is a party, or in any certificate or
document delivered to the Administrative Agent or 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
(g) any Loan Party shall (i) fail to make any payment on account of
any Indebtedness of such Person (other than the Obligations) 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 any Loan Party (other than the Obligations) 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 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 any Loan Party
(other than the Obligations) 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
(h) any Loan Party 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 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
(i) proceedings for the appointment of a receiver, trustee,
liquidator or custodian of any Loan Party 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 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
(j) 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
60
independent insurance broker or carrier satisfactory to the Administrative Agent
is entered against any Loan Party in excess of $500,000, or any non-monetary
final judgment is entered against the Borrower and the Required Lenders have
determined that the effect of such non-monetary final judgment will be likely to
have a Material Adverse Effect, and, in each case such judgment remains
unsatisfied without procurement of a stay of execution for more than 30 days
after its entry; or
(k) (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 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 perfected Lien on the Collateral described
therein (other than on an immaterial portion thereof) with the priority
purported to be created thereby; or (iii) any Loan Party 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
(l) 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
(m) a Change of Control shall occur; or
(n) any party to a FBO Lease shall fail to perform or observe any
material term or obligation contained therein, 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 not exceeding 90 days as is necessary
to remedy such failure 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; 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
(o) (i) any FBO Lease 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 assert in writing; (ii) any FBO Lease 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 becomes capable of being terminated as a result of a
breach by any Loan Party; or (iii) any material provision of any FBO Lease shall
be declared to be null and void, and any such event shall continue in effect for
10 days; or
(p) any Loan Party shall abandon its business operations at any
airport at which it is entitled to conduct FBO operations under a FBO Lease,
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 any airport for a continuous period of more than 30 days; or
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(q) 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 Loan
Party of its material rights and obligations under any of the Loan Documents or
Material Documents to which it is a party 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 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
(r) any substantial portion of the Loan Parties' property
(determined on a consolidated basis) is seized 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
(s) the Debt Service Coverage Ratio shall be less than or equal to
1.00 to 1.00 as of the end of any two consecutive fiscal quarters of the
Borrower; or
(t) any event or condition involving loss, liability, damage or
financial impact in excess of $10,000,000 suffered or incurred by one or more
Loan Parties shall occur or exist, which event or condition could reasonably be
expected to have a Material Adverse Effect.
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Any Event of Default referred to in Section 7.1(n), (o) or (p) affecting
one or more Eligible FBOs 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 Default occurred multiplied by (ii) the
Proportional EBITDA Contribution of such Eligible FBO(s), whereupon the Loan
Party or Loan Parties 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 Eligible FBO only if the Proportional EBITDA
Contribution of such Eligible FBO, when added to the Proportional EBITDA
Contribution of any other Eligible 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 Investors to the Borrower, or a combination thereof. For
the avoidance of doubt, the cure right permitted by this paragraph shall be
available with respect to the Eligible FBOs only, and may not be exercised more
than once during the period from the Initial 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 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(h) or (i) 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
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Issuing Bank in respect of any Drawing under a Letter of Credit issued 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 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) ▇▇▇ 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 Revolving Loan Commitment Termination 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.
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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 irrevocably 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 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
65
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 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.
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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 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 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
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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 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'
notice to the Lenders. If the Administrative Agent resigns under this Agreement,
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 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
hereunder as Administrative Agent, the provisions of this Article IX 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, the retiring
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Administrative Agent's resignation 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.
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 Lender 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 Lender 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 Lender 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 Lender
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 Lender
Hedging Agreement, (iv) early termination is permitted in accordance with the
terms of such Lender 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, or (vi) the Loans are repaid in full.
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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 Lender Hedging Agreement to which it is a party.
(b) If the aggregate notional amounts hedged under the Lender
Hedging Agreements exceed by more than ten percent (10%) the aggregate principal
amount of the Loans for a period of more than sixty days, the Administrative
Agent (acting at the direction of the Required Lenders) may, by notice to the
Hedging Banks and the Borrower, require that the amounts hedged under the Lender
Hedging Agreements be reduced (allocated ratably among the Lender Hedging
Agreements according to the respective amounts hedged thereunder) to a level
equal to no more than 110% and no less than 100% of the Loans outstanding.
Section 9.4 Agreement to be Bound by Loan Documents; Benefit of Lien of
Security Documents.
By entering into a Lender 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 Lender 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 the 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
70
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 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 its 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 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(f) or Section 4.2(g) 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 Initial Disbursement Date or Second Disbursement
Date, as applicable, 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,
and then such waiver or consent shall be effective only in the specific instance
and
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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:
(i) if to the Borrower:
North America Capital Holding Company
c/o Executive Air Support, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
North America Capital Holding Company
c/o Macquarie Infrastructure Assets Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Administrative Agent:
▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ Branch
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇/6072
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to the Revolving Loan Lender or the Issuing Bank:
Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(iv) if to any Lender, to it at its address (or telecopy
number) setforth 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
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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, (ii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, including the
reasonable fees, charges and disbursements of any advisers or consultants to the
Administrative Agent, in connection with the exercise of the step-in rights
contained in Section 6.1(n), and (iii) 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, 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
(including any indemnity payment by the Administrative Agent to Wachovia Bank,
National Association pursuant to the control agreement with such Person) or the
consummation of the transactions contemplated thereby, (ii) any Commitment, Loan
or Letter of Credit or the use of the proceeds therefrom (including any refusal
by the Issuing Bank to honor a demand for payment under a 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.
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(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 shall be payable not later
than ten Business Days after written demand therefor.
(e) The agreements in this Section 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 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. 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) 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
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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, 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.
(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, 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
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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, 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.
(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 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 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, 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. 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
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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 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
Borrower. In determining whether the interest or a fee contracted for, charged,
or received by the 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 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:
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(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 Borrower);
(b) The relationship between the Borrower and the Administrative
Agent and Lenders is, and shall at all times remain, solely that of borrowers
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 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 Investors or any of their Affiliates (other than
any Loan Party) (collectively, the "Non-Recourse Parties"), or any officer,
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. In the event of any conflict between
79
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.
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. 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.
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(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
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.
Section 10.17 Joinder Agreement and Other Agreements
(a) Upon the execution and delivery after the date hereof by an
Eligible Assignee, the Borrower, each Lender and the Administrative Agent of an
agreement in the form of Exhibit H attached hereto, such Person shall become a
Term Loan Lender hereunder with the same force and effect as if originally named
as a Term Loan Lender hereunder; provided that (i) each such new Lender (which
may include Macquarie Bank Limited so long as its total Commitments (including
its existing Commitments) do not exceed 40% of the aggregate Commitments of all
Lenders) shall be approved by the Administrative Agent and the Borrower, such
approval not to be unreasonably withheld; (ii) the total Commitments of such new
Lender or Lenders shall consist of Term Loan Commitments sufficient, together
with additional equity contributions by the Investors, to allow (x) HSH Nordbank
AG to reach a facility underwriting commitment of $65,000,000 (or such greater
amount as HSH Nordbank AG may agree in its sole discretion) and (y) Macquarie
Bank Limited to reach a facility underwriting commitment of $40,000,000 (or
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such greater amount (not to exceed 40% of the aggregate Commitments of all
Lenders) as Macquarie Bank Limited may agree in its sole discretion), in each
case after giving effect to the second Disbursement Date for Term Loans and any
assignments of Loan and Commitments by HSH Nordbank AG and Macquarie Bank
Limited after the Closing Date; (iii) such new Term Loan Commitments shall be
allocated between the Class A Commitments and Class B Commitments in the same
proportions as the respective Class A Commitments and Class B Commitments of the
Lenders party hereto as of the Closing Date; and (iv) each such new Lender shall
concurrently enter into an Assignment and Assumption with each of HSH Nordbank
AG and Macquarie Bank Limited agreeing to purchase and assume its Pro Rata Share
of the Term Loans advanced on the Initial Disbursement Date and shall pay the
purchase price payments thereunder.
(b) Upon the execution and delivery of the Joinder Agreement(s) in
accordance with this Section, (i) a schedule in substantially the form of
Schedule 2.1 attached to the Joinder Agreement(s) that has been properly revised
and completed to reflect the new Commitments and Pro Rata Shares shall supersede
and replace Schedule 2.1 hereto, and the Commitments and Pro Rata Shares of each
Lender shall be as set forth in such revised Schedule 2.1, and (ii) a schedule
shall be prepared by the Administrative Agent to reflect the required
amortization of Class A Loans based on the new Commitments, which schedule shall
be attached to the Joinder Agreement(s), and shall supersede and replace
Schedule 2.5 hereto, and the required amortization of Class A Loans shall be as
set forth in such revised Schedule 2.5.
(c) Notwithstanding Section 6.2(c), if the Borrower determines that
it will not be able to satisfy the applicable conditions precedent to the
Borrowing of Term Loans to finance the General Aviation Acquisition, the
Borrower shall have the right to assign either (x) its rights and obligations
under the GAH Purchase Agreement and any related rights or agreements or (y) all
property, assets and rights acquired under the GAH Purchase Agreement if such
transaction has closed, to an Affiliate of the Investors, which Affiliate shall
not be a Subsidiary of the Borrower or a Loan Party.
[signature pages to follow]
82
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 the Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ Bleach
--------------------------------------
Name: ▇▇▇▇▇▇ Bleach
Title: President and CEO
HSH NORDBANK AG, NEW YORK BRANCH
as Administrative Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President, Head of
Transportation Americas
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: VP
HSH NORDBANK AG, NEW YORK BRANCH
as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President, Head of
Transportation Americas
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: VP
Loan Agreement
MACQUARIE BANK LIMITED,
as Lender
By: /s/ ▇▇▇▇▇▇▇ DiMatting
--------------------------------------
Name: ▇▇▇▇▇▇▇ DiMatting
Title: Attorney
By: /s/ Li-▇▇▇ ▇▇▇▇
-------------------------------------
Name: Li-▇▇▇ ▇▇▇▇
Title: Attorney
Loan Agreement
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Revolving Loan Lender and Issuing Bank
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SVP
By:______________________________________
Name:
Title:
Loan Agreement
APPENDIX A
DEFINITIONS AND RULES OF INTERPRETATION
SCHEDULES TO LOAN AGREEMENT
Exhibit A
to Loan Agreement
FORM OF TERM LOAN BORROWING REQUEST
HSH Nordbank AG, New York Branch,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇/6072
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Re: Borrowing Request
This Borrowing Request is delivered pursuant to Section 2.1(b) of the Loan
Agreement dated as of October [__], 2004 (the "Loan Agreement"), among North
America Capital Holding Company (the "Borrower"), the Lenders party thereto, and
HSH Nordbank AG, New York Branch, as Administrative Agent for the Lenders (the
"Administrative Agent"). All capitalized terms used but not defined herein shall
have the meanings specified in the Loan Agreement.
The Borrower hereby irrevocably requests a Borrowing of Term Loans as
follows:
1. Requested Date of Borrowing: _______
2. Aggregate Amount of Requested Borrowing: $_______
Aggregate Amount of Requested Borrowing of Class A Loans: $_______
Aggregate Amount of Requested Borrowing of Class B Loans: $_______
3. Requested initial Interest Period: _______
The Borrower hereby certifies to the Administrative Agent and each Term
Loan Lender that (a) the proceeds of the requested Term Loans will be applied as
set forth in Schedule 1 hereto, which uses are permitted by the Loan Agreement,
(b) as of the date of this Borrowing Request, all of the conditions precedent
set forth in Section 4.1 or 4.2, as applicable, of the Loan Agreement have been
satisfied or waived by the Lenders, and on the date specified in Item 1 above,
the Borrower will have satisfied all such conditions precedent to the Term Loans
requested hereby, (c) as of the date of this Borrowing Request, each of the
representations and warranties of the Borrower set forth in Article V of the
Loan Agreement is true and correct to the extent provided therein and each such
representation and warranty will be true and correct on and as of the date of
the Borrowing requested hereby as if made on and as of such date (except to
Exh. A-1
the extent that such representations and warranties relate solely to an earlier
date, in which case such representations and warranties were true and correct on
and as of such date), (d) no Default or Event of Default has occurred and is
continuing, and (e) since the date of the most recent audited Financial
Statements provided to the Administrative Agent, no event or circumstance has
occurred which, individually or in the aggregate, has had or could reasonably be
expected to have a Material Adverse Effect.
Please wire transfer the proceeds of the Borrowing to the accounts of the
following Persons at the financial institutions indicated below.
Amount to be Person to be Paid Name, Address, ABA#,
Transferred Name of Payee Account No. and Attn:
----------- ------------- ----------- ---------
$_________________ _________________ ______________ ____________________
____________________
Attention:
$_________________ _________________ ______________ ____________________
____________________
Attention:
Dated:____________
NORTH AMERICA CAPITAL HOLDING
COMPANY,
as Borrower
By:______________________________________
Name:
Title:
Exh. ▇-▇
▇▇▇▇▇▇▇ ▇-▇
to Loan Agreement
FORM OF REVOLVING LOAN BORROWING REQUEST
Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (214) 397-486
Re: Borrowing Request
This Borrowing Request is delivered pursuant to Section 2.2(b) of the Loan
Agreement dated as of October [__], 2004 (the "Loan Agreement"), among North
America Capital Holding Company (the "Borrower"), the Lenders party thereto, HSH
Nordbank AG, New York Branch, as Administrative Agent for the Lenders (the
"Administrative Agent"), and Wachovia Bank, National Association, as Revolving
Loan Lender (the "Revolving Loan Lender") and Issuing Bank. All capitalized
terms used but not defined herein shall have the meanings specified in the Loan
Agreement.
The Borrower hereby irrevocably requests a Borrowing of Revolving Loans as
follows:
1. Requested Date of Borrowing: ________
2. Aggregate Amount of Requested Borrowing: $_______
The Borrower hereby certifies to the Administrative Agent and the
Revolving Lender that (a) the proceeds of the requested Revolving Loans will be
applied as set forth in Schedule 1 hereto, which uses are permitted by the Loan
Agreement, (b) as of the date of this Borrowing Request, all of the conditions
precedent set forth in Section 4.3 of the Loan Agreement have been satisfied or
waived by the Revolving Loan Lender, and on the date specified in Item 1 above,
the Borrower will have satisfied all such conditions precedent to the Revolving
Loans requested hereby, (c) as of the date of this Borrowing Request, each of
the representations and warranties of the Borrower set forth in Article V of the
Loan Agreement is true and correct to the extent provided therein and each such
representation and warranty will be true and correct on and as of the date of
the Borrowing requested hereby as if made on and as of such date (except to the
extent that such representations and warranties relate solely to an earlier
date, in which case such representations and warranties were true and correct on
and as of such date), (d) no Default or Event of Default or Revolver Event of
Default has occurred and is continuing, and (e) since the date of the most
recent audited Financial Statements provided to the Administrative Agent, no
▇▇▇. ▇-▇-▇
event or circumstance has occurred which, individually or in the aggregate, has
had or could reasonably be expected to have a Material Adverse Effect.
Please wire transfer the proceeds of the Borrowing to the accounts of the
following Persons at the financial institutions indicated below.
Amount to be Person to be Paid Name, Address, ABA#,
Transferred Name of Payee Account No. and Attn:
----------- ------------- ----------- ---------
$_________________ _________________ ______________ ____________________
____________________
Attention:
$_________________ _________________ ______________ ____________________
____________________
Attention:
Dated:____________
NORTH AMERICA CAPITAL HOLDING
COMPANY,
as Borrower
By:______________________________________
Name:
Title:
Exh. B-1-2
Exhibit B-2
to Loan Agreement
FORM OF NOTICE OF REVOLVING LOAN CONVERSION
[Date]
Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (214) 397-486
1. Reference is hereby made to that certain Loan Agreement, dated as of
October [__], 2004 (as amended, supplemented or otherwise modified from time to
time, the "Loan Agreement"), among North America Capital Holding Company, a
Delaware corporation (the "Borrower"), the Lenders party thereto from time to
time (the "Lenders"), HSH Nordbank AG, New York Branch, as administrative agent
for the Lenders (in such capacity, the "Administrative Agent"), and Wachovia
Bank, National Association, as Revolving Loan Lender (the "Revolving Loan
Lender") and Issuing Bank. Unless otherwise indicated, all terms defined in the
Loan Agreement have the same respective meanings when used herein.
2. Pursuant to Section 2.2(c) of the Loan Agreement, the Borrower hereby
irrevocably requests to convert a Revolving Loan Borrowing as follows:
(a) The Revolving Loan Borrowing to be converted consists of ["Base
Rate"]["LIBOR"]Loans in the aggregate principal amount of $__________ which were
initially advanced to the Borrower on __________, _____;
(b) The Revolving Loans in the Revolving Loan Borrowing are to be
converted into ["Base Rate"]["LIBOR Revolving"] Loans; and
(c) The date of the requested conversion is to be __________, ____.
3. The Borrower hereby certifies to the Revolving Loan Lender, the
Administrative Agent and the other Lenders that, on the date of this Notice of
Revolving Loan Conversion, and after giving effect to the requested conversion:
(a) The representations and warranties of the Borrower set forth in
Article V of the Loan Agreement and in the other Loan Documents are true and
correct in all material respects as if made on such date (except for
representations and warranties expressly made as of a specified date, which
shall be true as of such date);
▇▇▇. ▇-▇-▇
(b) Since the date of the most recent audited Financial Statements
provided to the Administrative Agent, no event or circumstance has occurred
which, individually or in the aggregate, has had or could reasonably be expected
to have, a Material Adverse Effect;
(c) No Default or Event of Default or Revolving Event of Default has
occurred and is continuing; and
(d) All of the Loan Documents are in full force and effect.
IN WITNESS WHEREOF, the Borrower has executed this Notice of Revolving
Loan Conversion on the date set forth above.
NORTH AMERICA CAPITAL HOLDING
COMPANY, as Borrower
By:______________________________________
Name:____________________________________
Title:___________________________________
Exh. B-2-2
Exhibit C
to Loan Agreement
FORM OF NOTE
$[_____________] [New York, New York]
_______________, 2004
FOR VALUE RECEIVED, the undersigned, NORTH AMERICA CAPITAL HOLDING
COMPANY, a Delaware corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of [________________________] (the "Lender"), on
the dates and in the amounts specified in the Loan Agreement (as hereinafter
defined), the principal amount of [_________________] DOLLARS ($___________) or
such lesser amount as shall equal the principal amount of all Class [_] Loans
made by the Lender pursuant to the Loan Agreement dated as of October [__], 2004
(the "Loan Agreement") among the Borrower, the Lender and certain other banks
and financial institutions from time to time parties thereto, and HSH Nordbank
AG, New York Branch, as Administrative Agent (the "Administrative Agent").
Capitalized terms used but not defined in this Note have the meanings assigned
to them in the Loan Agreement.
The Borrower promises to pay interest on the unpaid principal amount of
each Class [_] Loan from the date such Class [_] Loan is made until such
principal amount is paid in full, at such interest rates and on such dates as
provided in the Loan Agreement. All payments of principal and interest shall be
made to the Administrative Agent for the account of the Lender in Dollars in
immediately available funds at the Administrative Agent's office at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address as the
Administrative Agent may from time to time notify the Lender.
The holder of this Note is authorized to record the date and amount of
each Class [_] Loan made by such Lender, the date and amount of each repayment
of principal thereof, the amount of unpaid principal with respect thereto, and
the length of each Interest Period with respect thereto, on Schedule I annexed
hereto and constituting a part hereof, and any such recordation shall constitute
prima facie evidence of the accuracy of the information so recorded in the
absence of manifest error, provided that the failure of the holder of this Note
to make such recordation or any error therein shall not limit or otherwise
affect the obligations of the Borrower hereunder or under the Loan Agreement in
respect of the Class [_] Loans made by the Lender.
This Note is one of the Notes referred to in the Loan Agreement and is
entitled to the benefits thereof. This Note is secured by and entitled to the
benefits of the Security Documents.
This Note may be prepaid or required to be prepaid in whole or in part as
provided in the Loan Agreement. Upon the occurrence of any one or more Events of
Default, all amounts then remaining unpaid on this Note shall become, or may be
declared to be, immediately due and payable, as provided in the Loan Agreement.
Exh. C-1
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and nonpayment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
NORTH AMERICA CAPITAL HOLDING COMPANY
By:______________________________________
Name:
Title:
▇▇▇. ▇-▇
▇▇▇▇▇▇▇ ▇-▇
to Loan Agreement
FORM OF LEVERAGE RATIO CERTIFICATION
HSH Nordbank AG, New York Branch, as
Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇ ▇▇▇▇▇
This Certificate (this "Certificate") is delivered pursuant to Section
6.1(a)(iv) of that certain Loan Agreement, dated as of October [___], 2004 (as
amended, supplemented, modified or replaced from time to time, the "Loan
Agreement"), among North America Capital Holding Company, a Delaware corporation
("Borrower"), the Lenders party thereto from time to time, and HSH Nordbank AG,
New York Branch, as the Administrative Agent (in such capacity, the
"Administrative Agent"). All capitalized terms used but not defined herein shall
have the meanings specified in the Loan Agreement.
I hereby certify to the Administrative Agent on behalf of the Borrower as
follows:
1. I am the duly qualified and acting [President][Chief Financial
Officer][Treasurer] of the Borrower. I am authorized to execute this
Certificate on behalf of the Borrower.
2. This Certificate is delivered for the fiscal [quarter][year] ended
___________, ____ (the "Test Date") and covers financial results for
the twelve-month period ending on the Test Date (the "Test Period").
3. During the fiscal period covered by this Certificate, I have not
become aware of any Default or Event of Default that has occurred
and is continuing, with the exceptions set forth below in response
to which the Borrower has taken (or caused to be taken) or propose
to take (or cause to be taken) the following actions (if none, so
state).
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
Exh. D-1-1
The following are true and correct computations, to the best of my
knowledge, as at _______________, 200___, of the Leverage Ratio for the fiscal
quarter most recently ended:
Leverage Ratio [Total Funded Debt as of the Test Date / EBITDA for the Test ________:1.00
Period] (each as calculated below, in each case in accordance with GAAP)
(a) Total Funded Debt of the Borrower and its Subsidiaries as of the Test Date
on a consolidated basis:(1)
(i) All obligations for borrowed money (including Obligations under the
Loan Agreement) and all obligations evidenced by notes, bonds, debentures,
loan agreements or other similar instruments $________
(ii) All purchase money Indebtedness $________
(iii)All direct obligations arising under letters of credit, bankers'
acceptances, bank guaranties, surety bonds and similar instruments
$________
(iv) All obligations in respect of the deferred purchase price of property
or services other than trade accounts payable in the ordinary course of
business $________
(v) The capitalized amount in respect of Capital Leases $________
(vi) All Guarantees with respect to outstanding Indebtedness of the types
specified in the above clauses of Persons other than the Borrower or any
Subsidiary $________
--------
(1) For purposes of calculating the Leverage Ratio as of the last day of fiscal
quarter ending December 31, 2004, Total Funded Debt means the then outstanding
principal amount of the Term Loans borrowed on the Initial Disbursement Date,
and for purposes of calculating the Leverage Ration as of the last day of fiscal
quarter ending after December 31, 2004 through and including September 30, 2005,
Total Funded Debt means the then outstanding principal amount of the Term Loans.
Exh. D-1-2
(vii) All Indebtedness of the types referred in the above clauses of any
partnership or joint venture to the extent the Borrower or any Subsidiary
is liable therefor as a result of such Person's ownership interest in or
other relationship with such entity, unless such Indebtedness is
made non-recourse to the Borrower or such Subsidiary $________
equals Total Funded Debt
[(i)+(ii)+(iii)+(iv)+(v)+(vi)+(vii)+(viii)+(ix)+(x)] $________
(b) EBITDA of the Borrower and its Subsidiaries for the Test Period on a
consolidated basis:
(i) Net Income after taxes for the Test Period $________
(ii) Interest Expense for the Test Period $________
(iii)Depreciation and amortization for the Test Period $________
(iv) Income tax expense for the Test Period $________
equals EBITDA [(i)+(ii)+(iii)+(iv)] $________
IN WITNESS WHEREOF, the Borrower has caused this Certificate to be
executed and delivered by a duly authorized officer on this _____ day of
_________, 2004.
NORTH AMERICA CAPITAL HOLDING COMPANY,
as Borrower
By:_____________________________
Name:
Title:
▇▇▇. ▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
to Loan Agreement
FORM OF DEBT SERVICE COVERAGE RATIO CERTIFICATION
HSH Nordbank AG, New York Branch, as
Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇ ▇▇▇▇▇
This Certificate is delivered pursuant to Section 6.1(a)(v) of the Loan
Agreement (as amended, supplemented or otherwise modified from time to time, the
"Loan Agreement"), dated as of October [__], 2004, among North America Capital
Holding Company (the "Borrower"), the Lenders party thereto, and HSH Nordbank
AG, New York Branch, as Administrative Agent for the Lenders (the
"Administrative Agent"). All capitalized terms used but not defined herein shall
have the meanings specified in the Loan Agreement.
I hereby certify to the Administrative Agent on behalf of the Borrower as
follows:
1. I am the duly qualified and acting [President][Chief Financial
Officer][Treasurer] of the Borrower, and I am familiar with the
financial statements and financial affairs of the Borrower. I am
authorized to execute this Certificate on behalf of the Borrower.
2. The following are true and correct computations, to the best of my
knowledge, as at ______, 200_, of the Debt Service Coverage Ratio
for the twelve-month period ending on the last day of the fiscal
quarter covered by this Certificate:
Debt Service Coverage Ratio.
(i) Operating Revenues for the 12-month period ending on
the last day of the applicable fiscal quarter $________
(ii) Operating Costs paid during such 12-month period $________
(iii) Item 1 minus Item 2 $________
(iv) Required Class A Loan Repayment Amounts during the
12-month period ending on the last day of the
applicable fiscal quarter (less any permitted
deferral beyond such period) $________
(v) Interest and Hedging Obligations during such
period $________
(vi) Other Mandatory Debt Service during such
period $________
Exh. D-2-1
(including any commitment and agency fees payable by Borrower during such
period)
(vii) Mandatory Debt Service for such 12-month period (the sum of Items 4, 5 and
6) $________
(viii) Debt Service Coverage Ratio (ratio of Item 3 to Item 7)
IN WITNESS WHEREOF, the Borrower has caused this Certificate to be
executed and delivered by a duly authorized officer this _____ day of
_____________, 200__.
NORTH AMERICA CAPITAL HOLDING COMPANY,
as Borrower
By:_______________________________
Name:
Title:
Exh. D-2-2
Exhibit E
to Loan Agreement
TERMS OF PERMITTED SUBORDINATED DEBT
Permitted Subordinated Debt shall be issued pursuant to, or evidenced by,
an instrument containing provisions for the subordination of such Permitted
Subordinated Debt to all Obligations, substantially as follows (without
limitation as to further, not inconsistent, provisions if so desired).
All capitalized terms used in this Exhibit E but not defined herein shall
have the meanings ascribed to such terms in Appendix A to the Loan Agreement.
SUBORDINATION OF PERMITTED SUBORDINATED DEBT
General.
Notwithstanding any provision of this agreement to the contrary, the
Borrower and the holder of the Permitted Subordinated Debt, for themselves and
for all present and future holders of such Permitted Subordinated Debt, hereby
covenant and agree that the Permitted Subordinated Debt shall be and are hereby
expressly made subordinate and junior in right of payment to the prior payment
(in cash or cash equivalents) and performance in full of all Obligations to the
extent and in the manner provided below.
Waiver.
The holder of the Permitted Subordinated Debt (or any instrument
evidencing the same) by acceptance hereof waives any and all notice of the
creation or accrual of any such Obligations and notice of proof of reliance upon
these subordination provisions by any holder of Obligations and hereby assents
to any renewal, extension or postponement of the time of payment of Obligations
or any other indulgence with respect thereto, to any increase in the amount of
Obligations, and to any substitution, exchange or release of collateral
therefor; and any such Obligations shall conclusively be deemed to have been
created, contracted or incurred in reliance upon these subordination provisions
and all dealings between the Borrower and any holder of Obligations so arising
shall be deemed to have been consummated in reliance upon these subordination
provisions.
Effects of Certain Defaults in Respect of Obligations.
If the Borrower or any other Loan Party shall default in the payment of
any principal of or interest on or other amount with respect to the Obligations
when the same becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration or otherwise, or if any other default or event
of default with respect to any such Obligations shall have occurred (each of the
foregoing a "Default"), and unless and until such Default shall have been
remedied or waived or shall have ceased to exist, no direct or indirect payment
by the Borrower from any
Exh. E-1
source whatsoever shall be made on account of the principal of, or premium, if
any, or interest on or other amount with respect to, the Permitted Subordinated
Debt.
Limitation on Payments and Demand for Payments.
For so long as any Obligations are outstanding, (i) the Borrower shall
not, directly or indirectly, make, or permit any of its Affiliates to make, any
payment of principal or interest on account of the Permitted Subordinated Debt,
except for payments from amounts that the Borrower would be permitted to pay as
a Distribution in accordance with Section 6.2(f) of the Loan Agreement and (ii)
without the prior written consent of the Required Lenders, the holder of the
Permitted Subordinated Obligations shall not demand, ▇▇▇ for, retain, or accept
from the Borrower or any other Person any payment of principal or interest on
account of such Permitted Subordinated Debt, except for payments from amounts
that the Borrower would be permitted to pay as a Distribution in accordance with
Section 6.2(f) of the Loan Agreement.
Limitation on Acceleration.
For so long as any Obligations are outstanding, the Permitted Subordinated
Debt may not be declared to be due and payable before its stated maturity unless
all Obligations have become due and payable, whether automatically or by
declaration, before its stated maturity and such declaration has not been
rescinded.
Insolvency, Etc.
(a) In the event of any liquidation, reorganization, dissolution, winding
up or composition or readjustment of the Borrower or its respective interests
(whether voluntary or involuntary, or in bankruptcy, insolvency, reorganization,
liquidation, receivership proceedings, or upon a general assignment for the
benefit of the Borrower's creditors or any other marshalling of the assets and
liabilities of the Borrower, or otherwise), all Obligations (including any claim
for interest thereon accruing at the contract rate after the commencement of any
such proceedings and any claim for additional interest that would have accrued
thereon but for the commencement of such proceedings, whether or not, in either
case, such claim shall be enforceable in such proceedings) shall first be paid
in full in cash or cash equivalents before any direct or indirect payment or
distribution, whether in cash or cash equivalents, securities or other property,
is made in respect of the Permitted Subordinated Debt, and any cash, securities
or other property, which would otherwise (but for these subordination
provisions) be payable or deliverable in respect of the Permitted Subordinated
Debt directly or indirectly by the Borrower from any source whatsoever shall be
paid or delivered directly to the holders of Obligations until all Obligations
(including claims for interest and additional interest as aforesaid) shall have
been paid in full in cash or cash equivalents; provided that the holders of the
Permitted Subordinated Debt may receive and retain (x) shares of equity
securities of the Borrower and (y) debt securities of the Borrower, the payment
of which is subordinated to the full and final payment of all Obligations on the
same basis as the Permitted Subordinated Debt.
(b) The holder of Permitted Subordinated Debt shall not commence or join
with any other creditor or creditors of the Borrower in commencing any
bankruptcy, insolvency,
Exh. E-2
reorganization, liquidation or receivership proceedings against the Borrower. At
any general meeting of creditors of the Borrower in the event of any
liquidation, reorganization, dissolution, winding up or composition or
readjustment of the Borrower or its interests (whether voluntary or involuntary,
or in bankruptcy, insolvency, reorganization, liquidation, receivership
proceedings, or upon a general assignment for the benefit of the Borrower's
creditors or any other marshalling of the assets and liabilities of the
Borrower, or otherwise), if all Obligations have not been paid in full at such
time, the Required Lenders (or any authorized agent thereof) are hereby
irrevocably authorized at any such meeting or in any such proceeding:
(1) to enforce claims comprising Permitted Subordinated Debt in
the name of the holder of such Permitted Subordinated Debt, by
proof of debt, proof of claim, suit or otherwise; and
(2) to collect any assets of the Borrower distributed, divided or
applied by way of dividend or payment, or such securities
issued, on account of Permitted Subordinated Debt, and apply
the same, or the proceeds of any realization upon the same
that the Required Lenders in their discretion elects to
effect, to the Obligations until all Obligations shall have
been paid in full.
(c) The Borrower and holder of the Permitted Subordinated Debt each hereby
(i) irrevocably authorizes and empowers the Required Lenders, under the
circumstances set forth in the above paragraph, to demand, ▇▇▇ for, collect and
receive every such payment or distribution referred to in such paragraph (b) and
give acquittance therefor, and execute, verify, deliver and file any claims or
proofs of claim (to the extent not properly filed by the holder of the Permitted
Subordinated Debt within two weeks prior to the due date for any such filing),
assignments or other instruments which any holder of the Obligations may at any
time reasonably require in order to provide and realize upon any rights or
claims pertaining to the Permitted Subordinated Debt in any statutory or
non-statutory proceeding in accordance with these subordination provisions, and
take such other actions, on behalf of the holders of the Obligations or
otherwise, as the Required Lenders may deem necessary or advisable for the
enforcement of the subordination provisions hereto and (ii) appoints any Person
designated for such purpose by the Required Lenders as its attorney-in-fact for
all such purposes.
Turnover of Payments.
If (i) any payment or distribution shall be collected or received by the
holder of the Permitted Subordinated Debt in contravention of the terms hereto
and prior to the payment in full in cash or cash equivalents of all Obligations
at the time outstanding and (ii) any holder of such Obligations (or any
authorized agent thereof) shall have notified the holder of the Permitted
Subordinated Debt of the facts by reason of which such collection or receipt so
contravenes the subordination provisions hereto, the holder of the Permitted
Subordinated Debt will deliver such payment or distribution, to the extent
necessary to pay all such Obligations in full in cash or cash equivalents, to
the Collateral Agent, for the benefit of the holders of the Obligations, in the
form received, and until so delivered, the same shall be held by the holder of
the Permitted Subordinated Debt in trust for the holders of the Obligations and
shall not be commingled with other funds or property of the holder of the
Permitted Subordinated Debt.
Exh. E-3
No Prejudice or Impairment.
No present or future holder of any Obligations shall be prejudiced in the
right to enforce subordination of the Permitted Subordinated Debt by any act or
failure to act on the part of the Borrower. Nothing contained herein shall
impair, as between the Borrower and the holder of the Permitted Subordinated
Debt, the obligation of the Borrower to pay to the holder hereof the principal
hereof and premium, if any, and interest hereon as and when the same shall
become due and payable in accordance with the terms hereof, or, except as
provided herein, prevent the holder of the Permitted Subordinated Debt from
exercising all rights, powers and remedies otherwise permitted by applicable law
or thereunder upon the happening of an event of default in respect of the
Permitted Subordinated Debt, all subject to the rights of the holders of
Obligations as provided in this section to receive cash, securities or other
property otherwise payable or deliverable to the holder of the Permitted
Subordinated Debt directly or indirectly by the Borrower from any source
whatsoever.
Payment of Obligations, Subrogation, Etc.
Upon the payment in full in cash or cash equivalents of all Obligations,
the holder of the Permitted Subordinated Debt shall be subrogated to all rights
of the holders of such Obligations to receive any further payments or
distributions applicable to Obligations until the Permitted Subordinated Debt
shall have been paid in full in cash or cash equivalents, and, for the purposes
of such subrogation, no payment or distribution received by the holders of
Obligations of cash, securities, or other property to which the holder of the
Permitted Subordinated Debt would have been entitled except for this Section
shall, as between the Borrower and its creditors other than the holders of
Obligations, on the one hand, and the holder of the Permitted Subordinated Debt,
on the other hand, be deemed to be a payment or distribution by the Borrower on
account of Obligations.
No Assignment.
The holder of the Permitted Subordinated Debt may not assign all or a
portion of such Permitted Subordinated Debt without the prior written consent of
the Required Lenders and only upon the execution and delivery to the Required
Lenders of an agreement by such assignee to be bound by the subordination terms
hereto, in form and substance satisfactory to the Required Lenders.
Miscellaneous.
(a) The foregoing subordination provisions are for the benefit of the
holders of the Obligations and, so long as any Obligations are outstanding, may
not be rescinded, cancelled or modified adversely to the interests of the
holders of the Obligations without the prior written consent thereto of the
Required Lenders.
(b) The Borrower and the holder of the Permitted Subordinated Debt shall
execute and deliver to the Required Lenders such further instruments and shall
take such further action as the
Exh. E-4
Required Lenders may from time to time reasonably request or deem advisable to
carry out the provisions and intent of the foregoing subordination provisions.
(c) Permitted Subordinated Debt may not be incurred by any Loan Party
other than the Borrower.
Exh. E-5
Exhibit F
to Loan Agreement
Form of Control Agreement
CONTROL AGREEMENT
This Control Agreement, dated as of [________], 200[__] (this
"Agreement"), among NORTH AMERICA CAPITAL HOLDING COMPANY (the "Borrower"), THE
BANK OF NEW YORK, as Collateral Agent (the "Collateral Agent") for the benefit
of the Secured Parties (as defined in the Loan Agreement referred to below), and
[BANK], in its capacity as a "bank" as defined in Section 9-102 of Article 9 of
the UCC (in such capacity, the "Operating Account Bank"). Capitalized terms used
but not defined herein shall have the meanings assigned thereto in the Loan
Agreement dated as of October [__], 2004 (as amended, restated, supplemented or
otherwise modified from time to time, the "Loan Agreement") among the Borrower,
the Lenders party thereto, and HSH Nordbank AG, New York Branch, as
Administrative Agent (the "Administrative Agent"). All references herein to the
"UCC" means the Uniform Commercial Code as in effect from time to time in the
State of [____________].
WHEREAS, pursuant to that certain Security Agreement, dated as of October
[__], 2004, between the Borrower and the Collateral Agent (the "Security
Agreement"), the Borrower has granted a security interest in substantially all
of its assets.
NOW THEREFORE, the parties hereto hereby agree, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, as
follows:
Section 2. Maintenance of Account. The Operating Account Bank hereby
confirms and agrees that it has established and shall maintain in the name of
the Borrower account number [_________] (the "Account"), and the Operating
Account Bank shall not change the name or account number of the Account without
the prior written consent of the Collateral Agent.
Section 3. Control of the Account. If at any time the Operating Account
Bank shall receive any instructions originated by the Collateral Agent directing
the disposition of funds in the Account, the Operating Account Bank shall comply
with such instructions without further consent by the Borrower or any other
person. The Operating Account Bank hereby acknowledges that it has received
notice of the security interest of the Collateral Agent in the Account and
hereby acknowledges and consents to such lien.
Section 4. Subordination of Lien; Waiver of Set-Off. In the event that the
Operating Account Bank has or subsequently obtains by agreement, by operation of
law or otherwise a security interest in the Account or any funds credited
thereto, the Operating Account Bank hereby agrees that such security interest
shall be subordinate to the security interest of the Collateral Agent. Money and
other items credited to the Account will not be subject to deduction, set-off,
banker's lien, or any other right in favor of any person other than the
Exh. F-1
Collateral Agent (except that the Operating Account Bank may set off (i) all
amounts due to the Operating Account Bank in respect of customary fees and
expenses for the routine maintenance and operation of the Account and (ii) the
face amount of any checks which have been credited to the Account but are
subsequently returned unpaid because of uncollected or insufficient funds).
Section 5. Choice of Law. This Agreement shall be governed by the laws of
the State of [_________]. Regardless of any provision in any other agreement,
for purposes of the UCC and Article 9 of the UCC as adopted in the State of
[________] shall be deemed to be the Operating Account Bank's jurisdiction
(within the meaning of Section 9-304 of Article 9 of the UCC).
Section 6. Conflict with Other Agreements.
(a) In the event of any conflict between this Agreement (or any portion
thereof) and any other agreement now existing or hereafter entered into, the
terms of this Agreement shall prevail;
(b) No amendment or modification of this Agreement or waiver of any right
hereunder shall be binding on any party hereto unless it is in writing and is
signed by all of the parties hereto; and
(c) The Operating Account Bank hereby confirms and agrees that it has not
entered into, and until the termination of this Agreement, will not enter into,
any agreement with any other person relating to the Account and/or any funds
credited thereto pursuant to which it has agreed to comply with instructions
originated by such persons as contemplated by Section 9-104 of Article 9 of the
UCC.
Section 7. Adverse Claims. The Operating Account Bank does not know of any
liens, claims or encumbrances relating to the Account. If any person asserts any
lien, encumbrance or adverse claim (including any writ, garnishment, judgment,
warrant of attachment, execution or similar process) against the Account, the
Operating Account Bank will promptly notify the Collateral Agent and the
Borrower thereof.
Section 8. Maintenance of Account. In addition to, and not in lieu of the
obligation of the Operating Account Bank to honor instructions as set forth in
Section 2 hereof, the Operating Account Bank agrees to maintain the Account as
follows:
(a) Statements and Confirmations. The Operating Account Bank will promptly
send copies of all statements, confirmations and other correspondence concerning
the Account simultaneously to each of the Borrower and the Administrative Agent
at their addresses set forth in Section 9.
(b) Tax Reporting. All interest, if any, relating to the Account, shall be
reported to the Internal Revenue Service and all state and local taxing
authorities under the name and taxpayer identification number of the Borrower.
(c) Withdrawal of Funds. If the Operating Account Bank (x) receives a
withdrawal request from the Borrower and (y) has not theretofore received a
notice from the Collateral
Exh. F-2
Agent (pursuant to Section 2 or otherwise) prohibiting withdrawals, then the
Operating Account Bank shall not be liable to the Collateral Agent for funding
the Borrower's withdrawal, it being acknowledged and agreed that the Collateral
Agent shall look solely to the Borrower in this regard.
Section 9. Indemnification of Operating Account Bank. The Borrower hereby
agrees that (i) the Operating Account Bank is released from any and all
liabilities to the Borrower arising from the terms of this Agreement and the
compliance of the Operating Account Bank with the terms hereof, except to the
extent that such liabilities arise from the Operating Account Bank's negligence,
and (ii) the Borrower, its successors and assigns shall at all times indemnify
the Operating Account Bank from and against any and all claims, actions and
suits of others arising out of the terms of this Agreement or the compliance of
the Operating Account Bank with the terms hereof, except to the extent that such
arises from the Operating Account Bank's negligence.
Section 10. Successors; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, except that the Borrower may not assign or transfer any of its
rights or obligations under this Agreement the prior written consent of the
Collateral Agent.
Section 11. Notices. Any notice, request or other communication required
or permitted to be given under this Agreement shall be in writing and deemed to
have been properly given when delivered in person, or when sent by telecopy and
electronic confirmation of error-free receipt is received or two (2) days after
being sent by certified or registered United States mail, return receipt
requested, postage prepaid, addressed to the party at the address set forth
below.
Administrative Agent: HSH Nordbank AG, New York Branch
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇/6072
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Borrower: North America Capital Holding Company
c/o Executive Air Support, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director of
Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Exh. F-3
with copies to:
North America Capital Holding Company
c/o Macquarie Infrastructure Assets Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Collateral Agent: The Bank of New York,
as Collateral Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇/5707
Any party may change its address for notices in the manner set
forth above.
Section 12. Termination. The obligations of the Operating Account Bank to
the Collateral Agent pursuant to this Agreement shall continue in effect until
the security interest of the Collateral Agent in the Account has been terminated
pursuant to the terms of the Security Agreement and the Collateral Agent has
notified the Operating Account Bank of such termination in writing. The
Collateral Agent agrees to provide a Notice of Termination in substantially the
form of Exhibit A attached hereto to the Operating Account Bank upon the request
of the Borrower on or after the termination of the Collateral Agent's security
interest in the Account pursuant to the terms of the Security Agreement. The
termination of this Agreement shall not terminate the Account or alter the
obligations of the Operating Account Bank to the Borrower pursuant to any other
agreement with respect to the Account.
Section 13. Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing and delivering one or more
counterparts.
[signature page follows]
Exh. F-4
IN WITNESS WHEREOF, the parties hereto have caused this Control Agreement
to be executed as of the date first above written by their respective officers
thereunto duly authorized.
NORTH AMERICA CAPITAL HOLDING COMPANY,
as Borrower
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Collateral Agent
By:______________________________________
Name:
Title:
[OPERATING ACCOUNT BANK],
as Operating Account Bank
By:_______________________________
Name:
Title:
Exh. F-5
Exhibit A to Control Agreement
[Letterhead of Collateral Agent]
[Date]
[Name and Address of Operating Account Bank]
Attention:
Re: Termination of Control Agreement
You are hereby notified that the Control Agreement dated as of [_______],
200[_] among [_______] (the "Borrower"), you and the undersigned (a copy of
which is attached) is terminated and you have no further obligations to the
undersigned pursuant to such Agreement. Notwithstanding any previous
instructions to you, you are hereby instructed to accept all future directions
with respect to account number[s] [__________] from the Borrower. This notice
terminates any obligations you may have to the undersigned with respect to such
accounts, however nothing contained in this notice shall alter any obligations
which you may otherwise owe to the Borrower pursuant to any other agreement.
You are instructed to deliver a copy of this notice by facsimile
transmission to the Borrower.
Very truly yours,
THE BANK OF NEW YORK,
as Collateral Agent
By:______________________________
Name:
Title:
Exh. F-6
Exhibit G
to Loan Agreement
FORM OF ASSIGNMENT AND ASSUMPTION
Reference is made to the Loan Agreement dated as of October [___], 2004
(as amended and in effect on the date hereof, the "Loan Agreement") among North
America Capital Holding Company, the Lenders named therein, and HSH Nordbank AG,
as Administrative Agent for the Lenders. Terms defined in the Loan Agreement are
used herein with the same meanings.
1. Assignment and Assumption. For an agreed consideration, ________ (the
"Assignor") hereby irrevocably sells and assigns to the Assignee, and ________
(the "Assignee") hereby irrevocably purchases and assumes from the Assignor, as
of the Effective Date set forth in Annex 1 hereto, all of the Assignor's rights
and obligations under the Loan Agreement and any other documents or instruments
delivered pursuant thereto, to the extent related to the amount and percentage
interest identified in Annex 1, of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified in Annex
1 (the "Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
2. Representations and Warranties.
2.1 Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Loan
Agreement or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any
collateral thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document, or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
2.2 Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Loan Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Loan Agreement (subject
to receipt of such consents as may be required under the Loan Agreement), (iii)
from and after the Effective Date, it shall be bound by the provisions of the
Loan Agreement as a Lender thereunder and, to the extent of the Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it has
received a copy of the Loan Agreement and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment and Assumption and to purchase the Assigned Interest
on the basis of
Exh. G-1
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) attached to the
Assignment and Assumption is any documentation, including tax forms, required to
be delivered by it pursuant to the terms of the Loan Agreement, duly completed
and executed by the Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
3. Payments. From and after the Effective Date, the Administrative Agent shall
make all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignee whether such
amounts have accrued prior to, on or after the Effective Date. The Assignor and
the Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.
4. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns. This Assignment and Assumption may be executed in any number of
counterparts, which together shall constitute one instrument. Delivery of an
executed counterpart of a signature page of this Assignment and Assumption by
telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
ASSIGNOR
[NAME OF ASSIGNOR]
By:______________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:______________________________
Title:
Exh. G-2
[Consented to and](2) Accepted:
HSH NORDBANK AG, NEW YORK BRANCH, as
Administrative Agent
By_________________________________
Title:
[Consented to:](3)
NORTH AMERICA CAPITAL HOLDING COMPANY
By________________________________
Title:
----------
(2) To be added only if the consent of the Administrative Agent is required by
the terms of the Loan Agreement.
(3) To be added only if the consent of the Borrower is required by the terms of
the Loan Agreement.
Exh. G-3
ANNEX 1
1. Date of Assignment:
2. Legal Name of Assignor:
3. Legal Name of Assignee:
4. Effective Date:
6. Assigned Interest:
Aggregate Amount of Amount of Percentage Assigned
Commitment/Loans Commitment/Loans of
[Facility Assigned] for all Lenders Assigned Commitment/Loans
------------------- --------------- -------- ----------------
Class A Commitment /Class A Loans $_________ $ %
Class B Commitment /Class B Loans $_________ $ %
$_________ $ %
Exh. G-4
Exhibit H
to Loan Agreement
FORM OF JOINDER AGREEMENT
This JOINDER AGREEMENT (this "Agreement") dated as of __________, 2004, is
made by and among [__________] (the "New Lender"), North America Capital Holding
Company (the "Borrower"), HSH Nordbank AG, New York Branch and Macquarie Bank,
Limited, as the Lenders (the "Existing Lenders"), and HSH Nordbank AG, New York
Branch, in its capacity as Administrative Agent (the "Administrative Agent") and
as Lead Arranger. All capitalized terms used herein but not otherwise defined
herein shall have the meaning assigned to such terms in the Loan Agreement.
WHEREAS, the Borrower, the Administrative Agent and the Existing Lenders
have entered into a Loan Agreement, dated as of October [__], 2004 (the "Loan
Agreement"), pursuant to which the Lenders have extended Term Loans to the
Borrower in an aggregate principal amount equal to $130,000,000; and.
WHEREAS, the New Lender, having received and reviewed a copy of the Loan
Agreement, desires to execute this Joinder Agreement to become a Term Loan
Lender in accordance with the requirements of Section 10.17 of the Loan
Agreement
NOW, THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the New Lender hereby agrees as follows:
1. Agreement to be Bound. In accordance with Section 10.17 of the Loan
Agreement, the New Lender, by executing and delivering this Agreement, and on
and as of the date hereof, hereby agrees to become a Term Loan Lender under the
Loan Agreement with the same force and effect as if originally named as a Term
Loan Lender thereunder, and agrees to be bound by all of the terms and
conditions of the Loan Agreement. Each reference to a "Term Loan Lender" or a
"Lender" in the Loan Agreement shall be deemed for all purposes to include the
New Lender.
2. Commitments. The New Lender hereby agrees that its Term Loan
Commitments shall be as set forth in Schedule 2.1 attached hereto.
3. Assignment and Assumption of Term Loans. The New Lender hereby agrees
to enter into Assignment and Assumption agreements with each of the Existing
Lenders concurrently herewith, pursuant to which the New Lender shall purchase
and assume its Pro Rata Share of the Term Loans advanced on the Initial
Disbursement Date and pay the purchase price payments thereunder.
4. Replacement Schedules.
Exh. H-1
(a) Schedule 2.1 attached hereto shall supersede and replace
Schedule 2.1 attached to the Loan Agreement, and the Commitments and Pro
Rata Shares of each Lender shall be as set forth in such revised Schedule
2.1. For the avoidance of doubt, the parties acknowledge that the Term
Loan Commitments as set forth in such Schedule do not reflect any
reduction for the Term Loans extended on the Initial Disbursement Date.
(b) Schedule 2.5 attached hereto shall supersede and replace
Schedule 2.5 attached to the Loan Agreement, and the required amortization
of Class A Loan shall be as set forth in such revised Schedule 2.5.
5. Representations and Warranties. The New Lender (a) represents and
warrants that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and to become a Term Loan Lender under the Loan
Agreement, (ii) it meets all requirements of an Eligible Assignee under the Loan
Agreement, (iii) from and after the date hereof, it shall be bound by the
provisions of the Loan Agreement as a Lender thereunder and, to the extent of
its Commitment, shall have the obligations of a Lender thereunder, (iv) it has
received a copy of the Loan Agreement and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Agreement and to become a Lender and the Issuing Bank on the
basis of which it has made such analysis and decision independently and without
reliance on the Administrative Agent, the Lead Arranger or any other Lender, and
(v) attached hereto is any documentation (including tax forms) delivered by it
pursuant to the terms of the Loan Agreement, duly completed and executed by the
New Lender; and (b) agrees that (i) it will, independently and without reliance
on the Administrative Agent, the Lead Arranger or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents, and (ii) it will perform in accordance with their terms all
of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Term Loan Lender.
8. Full Force and Effect. Except as expressly supplemented hereby, the
Loan Agreement shall remain in full force and effect.
9. Governing Law. This Agreement shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Joinder Agreement
to be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
[__________________], as the New Lender
By:______________________________________
Exh. H-2
Name:
Title:
By:______________________________________
Name:
Title:
NORTH AMERICA CAPITAL HOLDING
COMPANY, as the Borrower
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
Exh. ▇-▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ BRANCH
as Lender and as the Administrative Agent
and Lead Arranger
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
MACQUARIE BANK, LIMITED,
as Lender
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Revolving Loan Lender and Issuing Bank
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
Exh. H-4
Schedule 2.1
COMMITMENTS AND PRO RATA SHARES
REVOLVING
REVOLVING LOAN PRO
CLASS A CLASS B LOAN RATA
CLASS A PRO RATA CLASS B PRO RATA COMMITMENT, SHARE,IF TOTAL
LENDER COMMITMENT SHARE COMMITMENT SHARE IF ANY ANY COMMITMENTS
------ ---------- ----- ---------- ----- ------ --------- -------------
HSH Nordbank AG, New York $12,438,272 40.12% $ 52,561,728 40.12% $ 0 0% $ 65,000,000
Bank
[New Lender(s)]* [$10,907,407] [35.19%] [$ 46,092,593] [35.19%] $ 0 0% $ 57,000,000
Macquarie Bank Limited $ 7,654,321 24.69% $ 32,345,679 24.69% $ 0 0% $ 40,000,000
Wachovia Bank, National $ 0 0% $ 0 0% $3,000,000 100% $ 3,000,000
Association
----------- ----- ------------ ----- ---------- --- ------------
Total $31,000,000] 100% $131,000,000 100% $3,000,000 100% $165,000,000
=========== ===== ============ ===== ========== === ============
*NOTE: TERM LOAN COMMITMENTS ARE SUBJECT TO ADJUSTMENT IF THE NEW LENDER'S TERM
LOAN COMMITMENTS IN ACCORDANCE WITH SECTION 4.2(b)(i) OF THE LOAN AGREEMENT ARE
NOT EQUAL TO $57,000,000. THE NEW LENDER COMMITMENTS AND PRO RATA SHARES SET
FORTH ABOVE CONTEMPLATE ONE NEW LENDER AND MUST BE ADJUSTED IF THERE IS MORE
THAN ONE NEW LENDER.
Exh. H-5
Schedule 2.5
REQUIRED AMORTIZATION OF CLASS A LOANS*
SCHEDULED
REPAYMENT CUMULATIVE
AMOUNT REPAYMENT
REPAYMENT DATE $US $US
-------------- --- ---
December 31, 2007 $1,491,875 $ 1,491,875
March 31, 2008 $1,491,875 $ 2,983,750
June 30, 2008 $1,491,875 $ 4,475,625
September 30, 2008 $1,491,875 $ 5,967,500
December 31, 2008 $1,801,875 $ 7,769,375
March 31, 2009 $1,801,875 $ 9,571,250
June 30, 2009 $1,801,875 $11,373,125
September 30, 2009 $1,801,875 $13,175,000
December 31, 2009 $2,150,625 $15,325,625
March 31, 2010 $2,150,625 $17,476,250
June 30, 2010 $2,150,625 $19,626,875
September 30, 2010 $2,150,625 $21,777,500
December 31, 2010 $2,305,625 $24,083,125
March 31, 2011 $2,305,625 $26,388,750
June 30, 2011 $2,305,625 $28,694,375
September 30, 2011 $2,305,625 $31,000,000
*NOTE: THE REQUIRED AMORTIZATION OF CLASS A LOANS IS SUBJECT TO REVISION BY THE
ADMINISTRATIVE AGENT IN ACCORDANCE WITH SECTION 10.17(b) OF THE LOAN AGREEMENT.
Exh. H-6
APPENDIX A
DEFINITIONS AND RULES OF INTERPRETATION
DEFINED TERMS
"Accelerated Class A Loan Amortization Amount" means, as of any Repayment
Date, the amount, if a positive number, equal to (a) the sum of all amounts
applied or to be applied to the repayment of Class A Loans on or prior to such
Repayment Date as a result of the payment of the Required Class A Loan Repayment
Amount and the mandatory prepayment of Class A Loans in accordance with Section
2.8(c)(v) of the Loan Agreement, minus (b) the amount set forth opposite such
Repayment Date in Schedule 2.5 attached to the Loan Agreement under the column
entitled "Scheduled Cumulative Repayment".
"Accounts" means, collectively, (1) the Debt Service Reserve Account, (2)
the Special Reserve Account, (3) the Loss Proceeds Account and (4) the
Distribution Account.
"Acquisitions" means the Executive Air Acquisition and the General
Aviation Acquisition.
"Acquisition Documents" means the Executive Air Stock Purchase Agreement,
the GAH Purchase Agreement, and each of the documents delivered or to be
delivered by the parties thereto under the Executive Air Stock Purchase
Agreement and the GAH Purchase Agreement at their respective closings.
"Actual Knowledge" means, (i) as used in Sections 4.1 and 4.2 of the Loan
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 the Loan 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 Borrower Subsidiary, the General
Manager of such FBO.
"Administrative Agent" means HSH Nordbank AG, in its capacity as
administrative agent for the Lenders under the Loan Documents, and any successor
administrative agent appointed pursuant to the terms of the Loan 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.
"Airport Authority" means any governmental or airport authority party to
an FBO Lease.
"Applicable Cash Sweep Percentage" means, as of each Cash Sweep Date, the
following percentage of Excess Cash Flow as of the end of the fiscal quarter of
the Borrower ending on such Cash Sweep Date:
(a) For each Cash Sweep Date occurring on or after December 31, 2005
and on or before September 30, 2006:
(i) if the Debt Service Coverage Ratio as of the end of the
fiscal quarter of the Borrower ending on such Cash Sweep Date is 1.30 to
1.00 or lower, 100%;
(ii) if the Debt Service Coverage Ratio as of the end of such
fiscal quarter is 1.50 to 1.00 or lower and subclause (i) of this clause
(a) does not apply, 75%;
(iii) if the Debt Service Coverage Ratio as of the end of such
fiscal quarter is 1.70 to 1.00 or lower and neither subclause (i) nor
subclause (ii) of this clause (a) applies, 50%; and
(iv) if the Debt Service Coverage Ratio as of the end of such
fiscal quarter is greater than 1.70 to 1.00, 0%.
(b) For each Cash Sweep Date occurring on or after December 31, 2006
and on or before September 30, 2007:
(i) if the Debt Service Coverage Ratio as of the end of the
fiscal quarter of the Borrower ending on such Cash Sweep Date is 1.30 to
1.00 or lower, 100%;
(ii) if the Debt Service Coverage Ratio as of the end of such
fiscal quarter is 1.50 to 1.00 or lower and subclause (i) of this clause
(b) does not apply, 75%;
(iii) if the Debt Service Coverage Ratio as of the end of such
fiscal quarter is 1.80 to 1.00 or lower and neither subclause (i) nor
subclause (ii) of this clause (b) applies, 50%; and
(iv) if the Debt Service Coverage Ratio as of the end of such
fiscal quarter is greater than 1.80 to 1.00, 0%.
2
(c) For each Cash Sweep Date occurring on or after December 31, 2007
and on or before September 30, 2009:
(i) if the Debt Service Coverage Ratio as of the end of the
fiscal quarter of the Borrower ending on such Cash Sweep Date is 1.30 to
1.00 or lower, 100%;
(ii) if the Debt Service Coverage Ratio as of the end of such
fiscal quarter is 1.40 to 1.00 or lower and clause (i) does not apply,
75%;
(iii) if the Debt Service Coverage Ratio as of the end of such
fiscal quarter is 1.50 to 1.00 or lower and neither clause (i) nor clause
(ii) applies, 50%; and
(iv) if the Debt Service Coverage Ratio as of the end of such
fiscal quarter is greater than 1.50 to 1.00, 0%.
(d) For each Cash Sweep Date occurring on or after December 31,
2009, 100%.
"Applicable Margin" means, for each day, the following rates per annum:
(a) for any Class A Loan, 2.25%;
(b) for any Class B Loan, 3.00%;
(c) for any LIBOR Revolving Loan, 2.35%; and
(d) for any Base Rate Revolving Loan, 0%.
"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 Class A Commitment" means, as to any Class A Lender, at any
time, an amount equal to the excess, if any, of (a) the amount of such Lender's
aggregate Class A Commitment, minus (b) the aggregate principal amount of all
Class A Loans made by such Lender prior to such time, minus (c) any portion of
the Class A Commitment of such Lender terminated pursuant to Section 2.7 of the
Loan Agreement.
"Available Class B Commitment" means, as to any Class B Lender, at any
time, an amount equal to the excess, if any, of (a) the amount of such Lender's
aggregate Class B Commitment, minus (b) the aggregate principal amount of all
Class B Loans made by such Lender prior to such time, minus (c) any portion of
the Class B Commitment of such Lender terminated pursuant to Section 2.7 of the
Loan Agreement.
3
"Available Commitment" means, as to a Lender, at any time, an amount equal
to its Available Class A Commitment, Available Class B 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 the Loan
Agreement.
"Available Term Loan Commitment" means, as to any Term Loan Lender, at any
time, an amount equal to such Term Loan Lender's Available Class A Commitment
and Available Class B Commitment.
"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 as set forth in the computer model prepared by the
Borrower and delivered to the Administrative Agent immediately prior to the
Closing Date
"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 the Loan Agreement.
"Borrower" has the meaning specified in the preamble to the Loan
Agreement.
"Borrowing" means a borrowing consisting of Term Loans or Revolving Loans
made by the applicable Lenders pursuant to the Loan Agreement.
"Borrowing Base" means, at any time, (a) 80% of Receivables; and (b) 50%
of Inventory.
"Borrowing Request" means a Term Loan Borrowing Request or a Revolving
Loan Borrowing Request.
4
"Business Day" means any day that is not a Saturday, Sunday or other day
on which commercial banks in New York City or Dallas, Texas, 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.
"California FBO Companies" means Newport FBO Two LLC, a Delaware limited
liability company, and Palm Springs FBO Two LLC, a Delaware limited liability
company.
"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)
commencing with the initial Cash Sweep Date, the Applicable Cash Sweep
Percentage of such 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 L/C 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 ▇▇▇▇▇'▇
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 ▇▇▇▇▇'▇ 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
5
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 ▇▇▇▇▇'▇ 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.
"Cash Sweep Date" means the last day of each fiscal quarter of the
Borrower, commencing with December 31, 2005.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of the Loan 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 the Loan 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 the Loan 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 corporation; or (b) the Investors or any
of their Affiliates 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.
"Class A Commitment" means, with respect to each Class A Lender, the
commitment of such Lender to make Class A Loans to the Borrower pursuant to
Section 2.1 of the Loan Agreement, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Lender's name
on Schedule 2.1 attached to the Loan Agreement under the heading "Class A
Commitment" or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time
to time in accordance with the Loan Agreement; provided that upon the execution
and delivery of a Joinder Agreement(s) in accordance with Section 10.17 of the
Loan Agreement, the Class A Commitment of each Lender party to the Loan
Agreement at such time shall be as set forth in the revised Schedule 2.1
attached to the Joinder Agreement.
"Class A Lender" means each Lender that has a Class A Commitment or that
holds a Class A Loan.
"Class A Loan" has the meaning specified in Section 2.1(a) of the Loan
Agreement.
"Class B Commitment" means, with respect to each Class B Lender, the
commitment of such Lender to make Class B Loans to the Borrower pursuant to
Section 2.1 of the Loan Agreement, in an aggregate principal amount at any one
time outstanding not to exceed the
6
amount set forth opposite such Lender's name on Schedule 2.1 attached to the
Loan Agreement under the heading "Class B Commitment" or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with the Loan
Agreement; provided that upon the execution and delivery of a Joinder
Agreement(s) in accordance with Section 10.17 of the Loan Agreement, the Class B
Commitment of each Lender party to the Loan Agreement at such time shall be as
set forth in the revised Schedule 2.1 attached to the Joinder Agreement.
"Class B Lender" means each Lender that has a Class B Commitment or that
holds a Class B Loan.
"Class B Loan" has the meaning specified in Section 2.1(a) of the Loan
Agreement.
"Closing Date" means the date of signing of the Loan Agreement.
"Collateral" means all Property of the Loan Parties 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 the Closing Date, 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 Class A
Commitment and the Class B 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 referred to on
Schedule 5.26 to the Loan Agreement.
"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.
"Debt Service Coverage Ratio" means, as of the end of each fiscal quarter
of the Borrower commencing with the first full fiscal quarter ending after the
Initial Disbursement Date, the ratio of (a) Net Cash Flow for the twelve month
period ending on the last day of such
7
fiscal quarter to (b) Mandatory Debt Service for such 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 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 Initial Disbursement Date or the Second
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
the Loan 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 Loan Party 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 Loan Party),
but excluding dividends payable solely in shares of common stock of any 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.
"EBITDA" means, for any period, the sum of the following items of the Loan
Parties, determined on a consolidated basis: (a) Net Income after tax for such
period, (b) Interest Expense for such period, (c) depreciation and amortization
for such period, (d) income tax expense for such period, (e) all unusual and
non-recurring expenses not exceeding $277,000 in connection with the acquisition
by EAS of the two New Orleans FBOs, (f) a one time payment made to ▇▇▇ ▇▇▇▇▇,
the former chief financial officer of EAS, not exceeding $180,000 required as a
result of the acquisition of EAS by the Borrower, and (g) all unusual and
non-recurring fees and expenses relating to the Executive Air Acquisition and
the General Aviation Acquisition and paid by MIC out of its own funds in
accordance with Section 6.1(w) of the Loan Agreement, 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, upon the consummation of the
GAH Acquisition, such items relating to GAH on a consolidated basis for the
twelve-month period preceding the date of determination shall be included in
such calculation (other than in the
8
calculation made in respect of the fiscal quarter ending December 31, 2004)
without regard to whether GAH was a Loan Party during such period.
"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.
"Eligible FBO", as used in Section 7.1 of the Loan Agreement, means any of
the FBOs located at the following airports: (i) Northeast Philadelphia Airport,
(ii) Houston Hobby Airport, (iii) Palm Springs Municipal Airport, (iii) New
Orleans International Airport, (iv) New Orleans Lakefront Airport, (v) ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ Memorial Airport in Bridgeport, Connecticut, and (vi) ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Airport.
"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 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 Loan Party or migrating or threatening to migrate
to or from any such real property, or arising from any investigation or
proceeding in which any 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 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.
9
"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) following the indirect acquisition of the
Borrower by Macquarie Infrastructure Assets Trust, 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 the indirect
acquisition of the Borrower by Macquarie Infrastructure Company Inc., the
Borrower and the Loan Parties.
"Event of Default" means any of the events specified in Section 7.1 of the
Loan 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 any Loan Party,
including any loss or destruction of, damage to, or other casualty relating to
hangars and ancillary facilities owned or leased by an 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 Loan
Parties 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, the Loan
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
10
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 the Loan
Agreement), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to the Loan
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 3.1(e) of the Loan 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 the Loan 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 by the Borrower pursuant to
the Executive Air Stock Purchase Agreement.
"Executive Air Stock Purchase Agreement" means the stock purchase
agreement among the Borrower (as permitted assignee of Macquarie Investment
Holdings, Inc., a Delaware corporation), as purchaser, and all of the former
shareholders of Executive, as sellers.
"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 (other than GAH), the construction of new hangar
facilities on the FBO locations, or other major new facilities.
"FBO" means fixed base operation.
"FBO Lease" means each lease or use agreement with or on behalf of the
airport authority relating to each fixed base operation location of Executive
and its Subsidiaries and of the California FBO Companies.
"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.
"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.
11
"Financing Parties" means, collectively, the Administrative Agent, the
Lenders, individually, and acting by and through the Administrative Agent, 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.
"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.
"GAH Purchase Agreement" means the Membership Interest Purchase Agreement,
dated as of August 18, 2004, by and among Merced Partners Limited Partnership,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, and North America Capital Holding Company, with
respect to the purchase by North America Capital Holding Company of 100% of the
membership interests of GAH.
"General Aviation Acquisition" the consummation after the Closing Date of
the purchase of all of the outstanding Equity Securities of GAH by the Borrower
pursuant to a purchase agreement to be entered into with all of the equity
holders of GAH.
"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
12
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.
"Guaranties" means, collectively, the Subsidiary Guaranty and each other
guaranty agreement executed by a Subsidiary and delivered by the Borrower
pursuant to Section 6.1(k) of the Loan Agreement (severally, a "Guaranty").
"Guarantor" means each now-existing or hereafter acquired or created
direct or indirect Subsidiary of the Borrower.
"Hartford Leases" means the (i) Lease and Operating Agreement, dated
October 29, 1985, between ▇▇▇▇▇▇▇▇ Airport Services, Inc. (as successor to Air
One, Inc.) and the State of Connecticut, as amended, and (ii) Lease and
Operating Agreement, dated September 10, 1990, between Charter Oaks Aviation,
Inc. and the State of Connecticut, as amended, each with respect to the fixed
base operations at ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Airport located in the State of
Connecticut.
"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 the Loan 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 HSH Nordbank AG, Macquarie Bank Limited and, to the
extent specified in a Joinder Agreement entered into in accordance with Section
10.17 of the Loan Agreement, the Person becoming an additional Hedging Bank
pursuant to such Joinder Agreement, and their respective successors and assigns,
as counterparties under the Lender Hedging Agreements contemplated in accordance
with Section 4.1(c) of the Loan 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 the Hedging
13
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 the Hedging Agreements,
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.
"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 the Loan
Agreement.
14
"Initial Disbursement Date" means the date of the initial Borrowing of
Term Loans.
"Intellectual Property Security Agreement" means that certain Security
Agreement (Intellectual Property) dated as of the Closing Date among the Loan
Parties, the Collateral Agent, and the Administrative Agent.
"Interest Expense" means, for any period, the sum, for the Loan Parties
(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 Only Period" means the date commencing on the Closing Date and
ending on (and including ) December 31, 2007.
"Interest Payment Date" means, (i) with respect to any LIBOR Revolving
Loan or Base Rate Revolving Loan, the last day of each March, June, September
and December, commencing on the first of such days to occur after such Loan is
made, and (ii) with respect to any 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.
"Interest Period" means, with respect to each 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 (or such other period of less than three months if such
period ends on a date which coincides with an Interest Payment Date for Loans
previously outstanding) 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 the Loan Agreement; provided that the Borrower may elect an
Interest Period not exceeding six months that ends on the next succeeding
Repayment Date or Cash Sweep Date for any portion of the Term Loans to be repaid
or projected to be repaid on such Repayment Date or Cash Sweep Date; and,
provided, further, that:
(a) 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; and
(b) 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.
15
"Inventory" means, at any time, all of the Loan Parties' goods,
merchandise and other personal property, 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 the 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.
"Investors" means Macquarie International Investments Pty Limited, an
Australian company, and Macquarie Investment Holdings, Inc., a Delaware
corporation, and/or any fund or other entity affiliated with (or managed by an
Affiliate of) Macquarie Bank Limited.
"IRC" means the Internal Revenue Code of 1986.
"Issuing Bank" means Wachovia Bank, National Association, and any
permitted successor thereto.
"Joinder Agreement" means an agreement entered into among the Borrower,
the Lenders party to the Loan Agreement as of the Closing Date, the
Administrative Agent, the Lead Arranger and a new Term Loan Lender, in
accordance with Section 10.17 of the Loan Agreement.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn face amount of all outstanding Letters of Credit.
"Lead Arranger" means HSH Nordbank AG, New York Branch, in its capacity as
the sole lead arranger.
"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
16
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.
"Lender Hedging Agreement" means any Hedging Agreement entered into, or to
be entered into, by the Borrower and a Hedging Bank in form and substance
satisfactory to the Administrative Agent and the Borrower, for a Hedging
Transaction in accordance with Section 4.1(c) of the Loan Agreement. So long as
the terms thereof are in compliance with the Loan Agreement, each Lender Hedging
Agreement shall be a Loan Document and shall be secured by the Liens created by
the Security Documents.
"Lenders" has the meaning set forth in the preamble of the Loan Agreement.
"Letter of Credit" means any letter of credit issued under the Loan
Agreement.
"Letter of Credit Expiration Date" means the day that is five (5) Business
Days 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 the Loan
Agreement in relation to the Letters of Credit.
"Letter of Credit Sublimit" means an amount equal to the lesser of (a)
$1,000,000 and (b) 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.
"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 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
17
(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 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 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 or the LIBOR Market Index Rate.
"LIBOR Market Index Rate" means, with respect to any day, the rate for
deposits in Dollars with a term equivalent to one month as reported on Telerate
page 3750 as of 11:00 a.m., London time, on such day, or if such day is not a
London business day, then the immediately preceding London business day (or, if
not so reported, then as determined by the Revolving Loan Lender from another
recognized source or interbank quotation).
"LIBOR Revolving Loans" means, at any time, a Revolving Loan bearing
interest as provided in Section 2.3(a) of the Loan 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 Agreement" means the Loan Agreement, dated as of the Closing Date,
among the Borrower, the Lenders and the Administrative Agent.
18
"Loan Documents" means the Loan Agreement, any Notes, each Guaranty, the
Security Documents, each Letter of Credit, the Lender Hedging Agreements, each
fee agreement referred to in Section 2.9 of the Loan Agreement, all other
documents, instruments and agreements entered into with the Administrative Agent
or any Lender pursuant to Section 4.1 of the Loan Agreement, and all other
documents, instruments and agreements entered into by any Loan Party with the
Administrative Agent or any Lender in connection with the Loan Agreement or any
other Loan Document on or after the Closing Date.
"Loan Parties" means, collectively, the Borrower and the Guarantors
(severally, a "Loan Party").
"Loans" means, collectively, the Class A Loans, the Class B Loans, and the
Revolving Loans.
"Mandatory Debt Service" means, for any period of four fiscal quarters of
the Borrower, the sum of the following amounts payable during such period: (a)
all Required Class A Loan Repayment Amounts set forth in Column A of Schedule
2.5, (b) all interest on the Loans, (c) all commitment and agency fees payable
by the Borrower, and (d) any payments constituting Hedging Obligations payable
by the Borrower (or less amounts payable to the Borrower); provided that for
purposes of calculating the 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 Initial 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 Initial 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
Initial 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)
19
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 Loan
Parties, taken as a whole; (b) the ability of the Loan Parties 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 Documents" means, collectively, (i) each of the FBO Leases; (ii)
the Acquisition Documents; and (iii) the certificate of incorporation, articles
of incorporation, bylaws, certificate of limited partnership, articles of
organization, operating agreement or comparable document of each Loan Party.
"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 seven (7) years after the Closing
Date; provided that if such date is a day other than a Business Day, the
Maturity Date shall be the next succeeding Business Day unless such next
succeeding Business Day falls in the next calendar month, in which case the
Maturity Date shall be the next preceding Business Day.
"Maximum Release Percentage" means (a) during the Interest Only Period,
5%; and (b) at any time thereafter 10%.
"MIC" means Macquarie Infrastructure Company Inc., a Delaware corporation.
"Monthly Funds Transfer Date" means the last Business Day of each calendar
month.
"Moody's" means ▇▇▇▇▇'▇ 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.
"Net Asset Disposition Proceeds" means, with respect to any sale of any
Property by any Loan Party (including the direct or indirect sale of any stock
or other Equity Securities of any Loan Party other than the Borrower), other
than any sale permitted by Section 6.2(c) of the Loan 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
20
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, less (b) 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 Loan Party, 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 Loan Party, 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
the Loan Agreement; and (iv) the issuance of Equity Securities by the Borrower
to the Investors.
"Net Income" means with respect to any fiscal period, the net income of
the Loan Parties 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 a Loan Party 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 a Loan Party in connection with the adjustment or
settlement of any claims of a Loan Party in respect thereof
21
(including reasonable fees and expenses of counsel), and (ii) provisions for all
taxes payable as a result of such event.
"Newport Lessee" means Newport FBO Two LLC, a Delaware limited liability
company.
"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
the Loan 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
the Loan 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) 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 (iii) 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 the Loan Agreement, and any additional or replacement accounts from time
to time established and maintained by any of the Loan Parties.
"Operating Costs" means, for any period, all actual cash costs incurred
and paid by the Loan Parties (determined on a consolidated basis by excluding
any such payments from one Loan Party to another Loan Party) 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) or funded by equity contributions made by the Investors, (b) 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, (c) all payments of principal of or interest upon
the Loans (whether or not constituting Mandatory Debt Service), (d) Investments,
(e) Distributions or (f) all costs paid by Net Insurance Proceeds or other
insurance proceeds (other than proceeds of any business interruption insurance);
provided that upon the consummation of both the GAH Acquisition and the Second
Disbursement, such items relating to GAH 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 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 Loan Parties
(determined on a consolidated basis by excluding any such amounts received by
one Loan Party from another Loan Party) 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 insurance); provided that
22
upon the consummation of both the GAH Acquisition and the Second Disbursement,
such items relating to GAH 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 was a Loan Party during such period.
"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 the Loan Agreement or from the execution, delivery
or enforcement of, or otherwise with respect to, the Loan 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 Lender Hedging Agreements upon the
acceleration of the Loans in accordance with Section 7.2(a) of the Loan
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 Lender
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 Lender
Hedging Agreement had been terminated as of the commencement of such Bankruptcy
Proceeding.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Indebtedness" has the meaning given to that term in Section
6.2(a) of the Loan 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
23
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
the Loan Agreement.
"Permitted Subordinated Debt" means unsecured Indebtedness of any Loan
Party 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 the Loan 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
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 pledge agreement dated as
of the Closing Date by each Investor as of the Closing Date in favor of the
Collateral Agent granting a
24
first-priority security interest in the Equity Securities of Borrower, (b) each
pledge agreement delivered by the Borrower (or a Subsidiary of the Borrower) in
favor of the Collateral Agent granting a security interest in the Equity
Securities of a Subsidiary as a condition to the Borrowing of Loans, and (c) any
pledge agreements executed and delivered after the Closing Date by the Borrower
(or a 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 accordance with Section 6.1(k) of the Loan
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 Charlotte, North
Carolina; 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 Revolving Loan Lender or the
Administrative Agent, as applicable, shall take effect on the day specified in
the public announcement of such change.
"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 sentence of Section 7.1 of the Loan
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 (or the Class A Commitment or Class B
Commitment, as the context may require) of such Lender at such time, and the
denominator of which is the amount of the aggregate Term Loan Commitments (or
the aggregate Class A Commitments or Class B Commitments, as the context may
require), of all Term Loan Lenders, at such time. The initial Pro Rata Share of
each Lender as to its Class A Commitment and/or Class B Commitment is set forth
opposite the name of such Lender on Schedule 2.1 to the Loan Agreement or
Assignment and Assumption pursuant to which such Lender becomes a party to the
Loan Agreement, as applicable; provided that upon the execution and delivery of
a Joinder Agreement(s) in accordance with Section 10.17 of the Loan Agreement,
the Pro Rata Share of each Lender party to the Loan Agreement at such time shall
be as set forth in the revised Schedule 2.1 attached to the Joinder Agreement.
"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
25
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).
"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 FBO industry 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 a FBO operator's 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 Closing Date.
"Receivables" means, at any time, all of the accounts owing to the Loan
Parties 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 report 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.
"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.
"Repayment Date" means each date specified in Schedule 2.5 to the Loan
Agreement or, if any such date occurs on a day other than a Business Day, the
next preceding Business Day.
"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 Class A Loan Repayment Amount" means, as of any Repayment Date,
(a) the amount set forth opposite such Repayment Date under Column A of Schedule
2.5 to the Loan Agreement, plus (b) the aggregate unpaid amount, if any, of all
amounts that the Borrower has deferred in accordance with Section 2.5(a)(ii) of
the Loan Agreement.
26
"Required Class B Lenders" means, at any time, (a) Class B Lenders holding
66-2/3% or more of the aggregate then outstanding principal amount of Class B
Loans or (b) if there are no Class B Loans outstanding, Class B Lenders holding
66-2/3% or more of the aggregate Class B Commitments.
"Required Lenders" means, at any time, (a) Lenders (and, to the extent
applicable, Hedging Banks) holding in excess of 50% of the aggregate then
Outstanding Exposure or (b) if there are no Loans or Letter of Credit Usage
outstanding, Lenders holding in excess of 50% of the aggregate Commitments;
provided that, during any period of time Macquarie Bank Limited has 30% or less
of the aggregate Loans and Commitments (as determined at any time by the entries
in the Register maintained by the Administrative Agent pursuant to Section
10.4(b)(iii) of the Loan Agreement), "Required Lenders" shall mean (i) Lenders
(and, to the extent applicable, Hedging Banks) holding 66-2/3% or more of the
aggregate then Outstanding Exposure or (ii) 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 the Borrower 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 or any FBO Lease.
27
"Revolver Event of Default" means any event or circumstance which would
constitute an Event of Default hereunder, if the terms of the Loan Agreement and
the 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 the Loan 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 the Loan 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 the
Loan Agreement without reference to such amendment, waiver or consent. If notice
is required by any term of the Loan Agreement as a condition to the existence of
an Event of Default, for purposes of a Revolving 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 the Loan
Agreement.
"Revolving Loan Borrowing" means a borrowing consisting of Revolving Loans
made by the Revolving Loan Lender pursuant to the Loan Agreement.
"Revolving Loan Borrowing Request" means a request by the Borrower for a
Revolving Loan Borrowing in accordance with Section 2.2 of the Loan 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 the
Loan Agreement (and thereafter to make additional Revolving Loans to reimburse
Drawings under Letters of Credit Section 2.13 of the Loan Agreement), in an
aggregate principal amount at any one time outstanding not to exceed $3,000,000
(which amount shall be inclusive of the Letter of Credit Sublimit), as such
amount may be adjusted from time to time in accordance with the Loan 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) Business Days prior to the date which is two (2) years after the Closing
Date, subject to extension (not beyond the Maturity Date) as agreed from time to
time between the Borrower and the Revolving Loan Lender; 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
28
unless such next succeeding Business Day falls in the next calendar month, in
which case the Revolving Loan Commitment Termination Date shall be the next
preceding Business Day.
"Revolving Loan Lender" means Wachovia Bank, National Association, and any
permitted successor thereto.
"Second Disbursement" means the second Disbursement of Term Loans made by
the Term Loan Lenders on the Second Disbursement Date.
"Second Disbursement Date" means the date of the second Borrowing of Term
Loans, which date shall occur prior to December 31, 2004.
"Secured Parties" means collectively, the Collateral Agent, the Securities
Intermediary, the Administrative Agent, the Lenders, the Issuing Bank, and the
Hedging Banks.
"Securities Accounts" has the meaning specified in Section 5.13 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 the Closing
Date between the Borrower and the Collateral Agent for its benefit and the
benefit of the Secured Parties, as well as each security agreement delivered in
accordance with Section 6.1(k) of the Loan Agreement.
"Security Documents" means the Collateral Agency Agreement, each Security
Agreement, the Subsidiary Security Agreement, the Intellectual Property Security
Agreement the Pledge Agreements, the Subsidiary Guaranty, the Contribution
Agreement, 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, 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
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or about to engage in business or transactions for which such Person's Property
would constitute an unreasonably small capital.
"S&P" or "Standard & Poor's" means Standard & Poor's Rating Service, a
division of The ▇▇▇▇▇▇-▇▇▇▇ 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 Guaranty dated concurrently with
the Loan Agreement and executed by each Subsidiary of the Borrower in favor of
the Collateral Agent on behalf of the Financing Parties.
"Subsidiary Security Agreement" means that certain Security Agreement
dated concurrently with the Loan Agreement and executed by each Subsidiary of
the Borrower and Collateral Agent on behalf of the Financing 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.
"Term Loan" means, collectively, the Class A Loans and Class B Loans.
"Term Loan Borrowing" means a borrowing consisting of Term Loans made by
the Term Loan Lenders pursuant to the Loan Agreement.
"Term Loan Borrowing Request" means a request by the Borrower for a Term
Loan Borrowing in accordance with Section 2.1 of the Loan Agreement.
"Term Loan Commitment" means, with respect to each Term Loan Lender, the
commitment of such Term Loan Lender to make Term Loans to the Borrower pursuant
to Section 2.1 of the Loan 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 the Loan Agreement under the heading
"Commitment" or in the
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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 the Loan Agreement; provided that upon the execution and
delivery of a Joinder Agreement(s) in accordance with Section 10.17 of the Loan
Agreement, the Term Loan Commitment of each Term Lender party to the Loan
Agreement at such time shall be as set forth in the revised Schedule 2.1
attached to the Joinder Agreement..
"Term Loan Commitment Period" means, with respect to the Term Loan
Commitments, the period from and including the Closing Date to the earliest to
occur of (a) December 31, 2004, (b) the date on which the Available Term Loan
Commitments are reduced to zero, and (c) the date of termination of the
aggregate Term Loan Commitments.
"Term Loan Lender" means (a) on the Closing Date, the holders of Class A
Commitments and Class B Commitments as set forth on Schedule 2.1 attached to the
Loan Agreement, and (b) thereafter, the Lenders from time to time holding Term
Loan Commitments after giving effect to any Joinder Agreements entered into in
accordance with Section 10.17 of the Loan Agreement and after giving effect to
any assignments permitted by Section 10.4 of the Loan Agreement.
"Total Funded Debt" means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term,
for borrowed money (including Obligations under the Loan Agreement) and all
obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct
obligations arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar instruments, (d)
all obligations in respect of the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business),
(e) the capitalized amount in respect of Capital Leases that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP,
(f) without duplication, all Guarantees with respect to outstanding Indebtedness
of the types specified in clauses (a) through (e) above of Persons other than
the Borrower or any Subsidiary, and (g) all Indebtedness of the types referred
to in clauses (a) through (f) above of any partnership or joint venture to the
extent the Borrower or a Subsidiary is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, unless
such Indebtedness is expressly made non-recourse to the Borrower or such
Subsidiary; provided, that (i) for purposes of calculating the Leverage Ratio as
of last day of the fiscal quarter ending December 31, 2004, "Total Funded Debt"
shall mean the then outstanding principal amount of the Term Loans borrowed on
the Initial Disbursement Date, and (ii) for purposes of calculating the Leverage
Ratio as of last day of each fiscal quarter ending after December 31, 2004
through and including September 30, 2005, "Total Funded Debt" shall mean the
then outstanding principal amount of the Term Loans.
"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.
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"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.
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