AMENDMENT AGREEMENT
EXECUTION VERSION
AMENDMENT AGREEMENT, dated as of November 27, 2006 (this “Agreement”), among SPIRIT
AEROSYSTEMS, INC. (f/k/a MID-WESTERN AIRCRAFT SYSTEMS, INC.), a Delaware corporation (the
“Borrower”); SPIRIT AEROSYSTEMS HOLDINGS, INC. (f/k/a MID-WESTERN AIRCRAFT SYSTEMS
HOLDINGS, INC.), a Delaware corporation (the “Parent Guarantor”); ONEX WIND FINANCE LP, a
Delaware limited partnership; SPIRIT AEROSYSTEMS INTERNATIONAL HOLDINGS, INC., a Delaware
corporation, as Guarantor; SPIRIT AEROSYSTEMS FINANCE, INC., a Delaware corporation, as Guarantor;
ONEX WIND FINANCE LLC, a Wyoming limited liability company, as Guarantor; 3101447 NOVA SCOTIA
COMPANY, a Nova Scotia unlimited liability company, as Guarantor; CITICORP NORTH AMERICA,
INC., as Administrative Agent; the lending institutions and other Persons with a Commitment
under the Second Amended and Restated Credit Agreement (as defined below) (the “Lenders”);
CITIGROUP GLOBAL MARKETS INC., as Sole Lead Arranger and Bookrunner; THE BANK OF NOVA SCOTIA and
ROYAL BANK OF CANADA, as Co-Arrangers and as Co-Syndication Agents; THE BANK OF NOVA SCOTIA, as
Issuing Bank; and EXPORT DEVELOPMENT CANADA and CAISSE DE
DÉPÔT ET PLACEMENT DU QUÉBEC, as
Co-Documentation Agents.
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SECTION 1. (a) Certain Definitions. The following terms when used in this Agreement
shall have the following meanings (such meanings to be equally applicable to the singular and
plural form thereof):
“Additional Revolving Credit Commitment” means, with respect to an Additional
Revolving Lender, the commitment of such Additional Revolving Lender to make Revolving Loans and to
acquire participations in Letters of Credit and Swingline Loans under the Second Amended and
Restated Credit Agreement, in an amount set forth on Schedule I to this Agreement or
otherwise indicated in writing to the Administrative Agent. The aggregate amount of the Additional
Revolving Credit Commitments shall equal $225,000,000.
“Additional Revolving Lender” means a Person with an Additional Revolving Credit
Commitment on the Amendment Effective Date.
“Additional Term B-1 Commitment” means, with respect to an Additional Term B-1 Lender,
the commitment of such Additional Term B-1 Lender to make Term B-1 Loans on the Amendment Effective
Date, in an amount set forth on Schedule I to this Agreement or otherwise indicated in
writing to the Administrative Agent. The aggregate amount of the Additional Term B-1 Commitments
shall equal the outstanding principal amount of Term B Loans of Non-Consenting Term B Lenders.
“Additional Term B-1 Lender” means a Person with an Additional Term B-1 Commitment to
make Term B-1 Loans to the Borrower on the Amendment Effective Date.
“Agreement” is defined in the preamble.
“Amendment Effective Date” is defined in Section 4 hereof.
“Borrower” is defined in the preamble.
“IPO” means the underwritten public offering by Parent Guarantor of its common stock
closing on the Amendment Effective Date pursuant to a registration statement filed with the SEC in
accordance with the Securities Act of 1933, as amended.
“Lenders” is defined in the preamble.
“Loan Documents” is defined in the recitals hereto.
“Non-Consenting Term B Lender” means each Term B Lender that has not executed and
delivered a counterpart of this Agreement on or prior to the Amendment Effective Date for an amount
of Term B-1 Loans at least equal to its Term B Loans immediately prior to the Amendment Effective
Date.
“Original Collateral” is defined in the recitals hereto.
“Original Credit Agreement” is defined in the recitals hereto.
“Original Lenders” is defined in the recitals hereto.
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“Parent Guarantor” is defined in the preamble.
“Second Amended and Restated Credit Agreement” is defined in Section 3 hereof.
“Term B-1 Commitment” means, with respect to a Term B Lender, the agreement of such
Term B Lender to exchange its Term B Loans for an equal aggregate principal amount of Term B-1
Loans on the Amendment Effective Date under the Second Amended and Restated Credit Agreement, as
evidenced by such Term B Lender executing and delivering this Agreement.
“Term B-1 Lender” means, collectively, (i) each Term B Lender that executes and
delivers this Agreement on or prior to the Amendment Effective Date and (ii) each Additional Term
B-1 Lender.
“Term B-1 Loan” means a Loan made pursuant to Section 2.1(a)(i) under the Second
Amended and Restated Credit Agreement on the Amendment Effective Date.
(b) Other Definitions. Unless otherwise defined or the context otherwise requires,
terms for which meanings are provided in the Second Amended and Restated Credit Agreement shall
have such meanings when used in this Agreement.
(a) Subject to and upon the terms and conditions herein and of the Second Amended and Restated
Credit Agreement, each Term B Lender with a Term B-1 Commitment severally agrees to exchange its
Term B Loans (after giving effect to any repayments of such Term B Lender’s Term B Loans made
pursuant to Section 4(a) hereof) for a like outstanding principal amount of Term B-1 Loans on the
Amendment Effective Date, which exchange shall be deemed to be the making of a Term B-1 Loan by
such Lender for such amount.
(c) The Borrower shall pay all accrued and unpaid interest on the Term B Loans to the Term B
Lenders to, but not including, the date of repayment thereof, such payment to be made on such date
of repayment and any breakage loss or expense under Section 2.17 of the Original Credit Agreement.
The Amendment Effective Date shall be deemed the first day of a new Interest Period under the
Second Amended and Restated Credit Agreement with respect to the Term B-1 Loans made on the
Amendment Effective Date.
(d) For avoidance of doubt, holders of the Term B-1 Loans shall be entitled to the same
guarantees and security interests pursuant to the Loan Documents from and after the Amendment
Effective Date as the benefits to which the holders of Term B Loans had been entitled immediately
prior to the Amendment Effective Date.
(e) Subject to and upon the terms and conditions herein and in the Second Amended and Restated
Credit Agreement, each Additional Revolving Lender shall become a Revolving Lender under the Second
Amended and Restated Credit Agreement and shall have a Revolving Credit Commitment under the Second
Amended and Restated Credit Agreement in the amount of its Additional Revolving
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(f) On the Amendment Effective Date, Borrower shall repay all outstanding Revolving Loans out
of the proceeds of a new borrowing of Revolving Loans under the Second Amended and Restated Credit
Agreement and each of the Revolving Lenders having a Revolving Credit Commitment prior to the
Amendment Effective Date (the “Pre-Amendment Revolving Lenders”) shall assign to each
Additional Revolving Lender, and each Additional Revolving Lender shall purchase from each
Pre-Amendment Revolving Lender, at the principal amount thereof, such participation interests in LC
Exposure and Swingline Loans outstanding on the Amendment Effective Date as shall be necessary in
order that, after giving effect to all such repayments and reborrowings and assignments and
purchases, such Revolving Loans and participation interests in LC Exposure and Swingline Loans will
be held by Pre-Amendment Revolving Lenders and Additional Revolving Lenders ratably in accordance
with their Revolving Credit Commitments after giving effect to the Additional Revolving Credit
Commitments.
SECTION 3. Consent
Each of the parties to this Agreement hereby consents to the WLLC Preferred Stock Issuance in
connection with the NSULC Loan Repayment, and for the avoidance of doubt, agrees that after the
consummation of the Additional Borrower Assignment in accordance with Section 10.19 of the Original
Credit Agreement, the Additional Borrower (as defined in the Original Credit Agreement) and each
Additional Borrower Subsidiary (as defined in the Original Credit Agreement) shall be entitled to
amend, modify or otherwise change any Organizational Document of any Additional Borrower Party (as
defined in the Original Credit Agreement) or the WLLC Loans (as defined in the Original Credit
Agreement) and shall be released from all obligations and liabilities under the Loan Documents (as
defined in the Original Credit Agreement), and hereby authorizes the Collateral Agent to release
the Liens under the Onex Pledge Agreement (as defined in the Original Credit Agreement) and the
Canadian Pledge Agreement (as defined in the Original Credit Agreement) and to take any further
actions necessary to evidence the release of such Liens, obligations and liabilities in connection
with the Additional Borrower Assignment.
On the Amendment Effective Date, the Original Credit Agreement shall be, and is hereby,
amended and restated in its entirety as set forth in Annex I hereto (as set forth in such
Annex I, the “Second Amended and Restated Credit Agreement”), and as so amended and
restated is hereby ratified, approved and confirmed in each and every respect by all parties
hereto. The rights and obligations of the parties to the Original Credit Agreement with respect to
the period prior to the Amendment Effective Date shall not be affected by such amendment and
restatement.
This Agreement shall become effective as of the date first written above upon (the
“Amendment Effective Date”), and the obligations of the Lenders under the Second Amended
and Restated Credit Agreement shall be subject to satisfaction of each of the conditions precedent
set forth in this Section 5 hereof; provided that the consent set forth in Section 3 hereof shall
become effective immediately prior to the effectiveness of this Agreement for purposes of the
Second Amended and Restated Credit Agreement and the occurrence of the Exchange.
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(i) with respect to each Mortgage encumbering Mortgaged Property, an amendment
thereof (each a “Mortgage Amendment”) duly executed and acknowledged by the
applicable Loan Party, and in form for recording in the recording office where each
such Mortgage was recorded, together with such certificates, affidavits,
questionnaires or returns as shall be required in connection with the recording or
filing thereof under applicable law, in each case in form and substance reasonably
satisfactory to the Collateral Agent;
(ii) with respect to each Mortgage Amendment, a copy of the existing mortgage
title insurance policy and an endorsement with respect thereto (collectively, the
“Mortgage Policy”) relating to the Mortgage encumbering such Mortgaged
Property assuring the Collateral Agent that the Mortgage, as amended by the Mortgage
Amendment, is a valid and enforceable first priority lien on such Mortgaged Property
in favor of the Collateral Agent for the benefit of the Secured Parties free and
clear of all defects and encumbrances and liens except as expressly permitted by
Section 6.02 of the Original Credit Agreement or by the Collateral Agent, and such
Mortgage Policy shall otherwise be in form and substance reasonably satisfactory to
the Collateral Agent;
(iii) with respect to each Mortgage Amendment, opinions of local counsel to the
Loan Parties, which opinions (x) shall be addressed to each Agent and each of the
Lenders and be dated the Amendment Effective Date, (y) shall cover the
enforceability of the respective Mortgage as amended by the Mortgage Amendment and
such other matters incident to the transactions contemplated herein as the Agents
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may reasonably request and (z) shall be in form and substance reasonably satisfactory
to the Agents.
(n) Perfection Certificate. The Administrative Agent shall have received from the
Borrower an executed Perfection Certificate, dated the Amendment Effective Date, which shall either
reconfirm or update the Perfection Certificate delivered on the Original Closing Date.
(o) Seller Loan Documents. Substantially concurrently therewith the Seller Loan
Documents (as defined in the Original Credit Agreement) shall have been terminated and all liens
and other security interests granted or created thereunder in favor of the Seller shall have been
released and terminated and all of Seller’s rights thereunder (including under the Subordination
and Intercreditor Agreement (as defined in the Original Credit Agreement)) shall cease and the
Collateral Agent shall have received reasonably satisfactory evidence of the same.
(p) Pledge and Control Agreement. The Administrative Agent shall have received from
Onex a Pledge and Control Agreement in form and substance reasonably satisfactory to the
Administrative Agent, dated the Amendment Effective Date, pursuant to Section 10.19 of the Original
Credit Agreement.
SECTION 6. Representations and Warranties
On and as of the Amendment Effective Date, after giving effect to this Agreement, the Borrower
hereby represents and warrants to the Administrative Agent and each Lender as follows:
(a) this Agreement has been duly authorized, executed and delivered by the Borrower and each
Guarantor and constitutes the legal, valid and binding obligations of the Borrower and each
Guarantor enforceable against the Borrower and each Guarantor in accordance with its terms and the
Second Amended and Restated Credit Agreement and constitutes the legal, valid and binding
obligation of the Borrower and each Guarantor enforceable against the Borrower and each Guarantor
in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors’ rights generally;
(b) each of the representations and warranties contained in Article III of the Second Amended
and Restated Credit Agreement and in each other Loan Document is true and correct in all material
respects (except that any representation or warranty that is qualified as to “materiality” or
“Material Adverse Effect” shall be true and correct in all respects) with the same effect as if
then made (unless expressly stated to relate to an earlier date, in which case such representations
and warranties shall be true and correct in all material respects (except that any representation
or warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and
correct in all respects) as of such earlier date); and
(c) no Default or Event of Default has occurred and is continuing.
Other than as specifically provided herein or in the Second Amended and Restated Credit
Agreement, this Agreement shall not operate as a waiver or amendment of any right, power or
privilege of the Lenders under (and as defined in) the Original Credit Agreement or any other Loan
Document (as such term is defined in the Original Credit Agreement) or of any other term or
condition of the Original Credit Agreement or any other Loan Document (as such term is defined in
the Original Credit Agreement) nor shall the entering into of this Agreement preclude the Lenders
from refusing to enter into
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any further waivers or amendments with respect to the Second Amended and Restated Credit
Agreement. All references to the Original Credit Agreement in any document, instrument, agreement,
or writing that is a Loan Document shall from and after the Amendment Effective Date be deemed to
refer to the Second Amended and Restated Credit Agreement, and, as used in the Second Amended and
Restated Credit Agreement, the terms “Agreement,” “herein,” “hereafter,” “hereunder,” “hereto” and
words of similar import shall mean, from and after the Amendment Effective Date, the Second Amended
and Restated Credit Agreement.
SECTION 8. Headings
The various headings of this Agreement are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or any provisions hereof.
SECTION 9. Execution in Counterparts
This Agreement may be executed by the parties hereto in several counterparts (including by
facsimile), each of which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SECTION 10. Expenses
The Borrower agree to pay promptly (and in any event on the Amendment Effective Date) after
presentation of an invoice therefor all reasonable out-of-pocket expenses of the Agents (including
the reasonable fees and out-of-pocket expenses of one counsel to the Agents (and of local counsel,
if any, who may be retained by such counsel)) in connection with the preparation, negotiation,
execution and delivery of this Agreement, the Second Amended and Restated Credit Agreement, each
other Loan Document and the documents and transactions contemplated hereby, including the
reasonable fees and disbursements of Xxxxxx Xxxxxx & Xxxxxxx llp, counsel for the
Administrative Agent.
SECTION 11. Cross-References
References in this Agreement to any Section are, unless otherwise specified or otherwise
required by the context, to such Section of this Agreement.
SECTION 12. Cooperation; Other Documents
At all times following the execution of this Agreement, the parties hereto shall execute and
deliver to the Lenders and the Agents, or shall cause to be executed and delivered to the Lenders
and the Agents, and shall do or cause to be done all such other acts and things as the Lenders and
the Agents may reasonably deem to be necessary or desirable to assure the Lenders and the Agents of
the benefit of this Agreement (including the Second Amended and Restated Credit Agreement), the
other Loan Documents and each other document relating to this Agreement.
SECTION 13. Governing Law
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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SECTION 14. Affirmations
(a) Each Loan Party signatory hereto hereby (i) expressly acknowledges the terms of the Second
Amended and Restated Credit Agreement, (ii) ratifies and affirms its obligations under the Loan
Documents (including guarantees and security agreements) executed by the undersigned and (iii)
acknowledges, renews and extends its continued liability under all such Loan Documents and agrees
such Loan Documents remain in full force and effect.
(b) Each Loan Party signatory hereto hereby reaffirms, as of the Amendment Effective Date, (i)
the covenants and agreements contained in each Loan Document to which it is a party, including, in
each case, such covenants and agreements as in effect immediately after giving effect to this
Agreement and the transactions contemplated thereby, and (ii) its guarantee of payment of the
Obligations (including, without limitation, the Term B-1 Loans and all Obligations related to the
Additional Revolving Credit Commitments) pursuant to the Guarantee and the Lien on the Collateral
Securing payment of the Obligations (including, without limitation, the Term B-1 Loans and all
Obligations relating to the Additional Revolving Credit Commitments) pursuant to the Security
Documents.
(c) Each Loan Party signatory hereto hereby certifies that, as of the date hereof (both before
and after giving effect to the occurrence of the Amendment Effective Date and the effectiveness of
the Credit Agreement), the representations and warranties made by it contained in the Loan
Documents to which it is a party are true and correct in all material respects (except that any
representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” shall
be true and correct in all respects) with the same effect as if then made (unless expressly stated
to relate to an earlier date, in which case such representations and warranties shall be true and
correct in all material respects (except that any representation or warranty that is qualified as
to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such
earlier date).
(d) Each Loan Party signatory hereto further confirms that each Loan Document to which it is a
party is and shall continue to be in full force and effect and the same is hereby ratified and
confirmed in all respects, except that upon the occurrence of the Restatement Effective Date, all
references to such Loan Documents to the “Credit Agreement,” “Loan Documents,” “thereunder,”
“thereof,” or words of similar import shall mean the Credit Agreement and the other Loan Documents,
as the case may be, in each case after giving effect to the amendments and other modifications
provided for in the Second Amended and Restated Credit Agreement.
(e) Each Loan Party signatory hereto hereby acknowledges and agrees that the acceptance by the
Administrative Agent, each Lender and each other Agent of this document shall not be construed in
any manner to establish any course of dealing on any Agent’s or Lender’s part, including the
providing of any notice or the requesting of any acknowledgment not otherwise expressly provided
for in any Loan Document with respect to any future amendment, waiver, supplement or other
modification to any Loan Document or any arrangement contemplated by any Loan Document.
(f) Each Loan Party signatory hereto hereby represents and warrants that, immediately after
giving effect to the Second Amended and Restated Credit Agreement, each Loan Document, in each case
as modified by the Second Amended and Restated Credit Agreement (where applicable), to which it is
a party continues to be a legal, valid and binding obligation of the undersigned, enforceable
against such party in accordance with its terms (except, in any case, as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally and by principles of equity).
[SIGNATURE PAGES FOLLOW]
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SPIRIT AEROSYSTEMS, INC. (f/k/a MID-WESTERN AIRCRAFT SYSTEMS, INC.), as Borrower |
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By: | ||||||
Title: | ||||||
SPIRIT AEROSYSTEMS HOLDINGS, INC. (f/k/a MID-WESTERN AIRCRAFT SYSTEMS HOLDINGS, INC.), as Parent Guarantor |
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By: | ||||||
Title: | ||||||
ONEX WIND FINANCE LP, as Additional Borrower |
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By: | 1648701 Ontario Inc., its General Partner | |||||
By: | ||||||
Title: | ||||||
SPIRIT AEROSYSTEMS INTERNATIONAL
HOLDINGS, INC., as Guarantor |
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By: | ||||||
Title: | ||||||
SPIRIT AEROSYSTEMS
FINANCE, INC., as Guarantor |
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By: | ||||||
Title: |
Signature Page to Amendment Agreement
3101447 NOVA SCOTIA COMPANY, as Guarantor |
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By: | ||||||
Title: | ||||||
By: | ||||||
Title: | ||||||
ONEX WIND FINANCE LLC, as Guarantor |
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Title: |
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CITICORP NORTH AMERICA, INC., as Administrative Agent |
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Title: | ||||
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THE BANK OF NOVA SCOTIA, as Co-Arranger, Co-Syndication Agent and Issuing Bank |
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Name: | ||||
Title: | ||||
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ROYAL BANK OF CANADA, as Co-Arranger, Co-Syndication Agent and Issuing Bank |
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EXPORT DEVELOPMENT CANADA, as Co-Documentation Agent |
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Name: | ||||
Title: | ||||
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CAISSE DE DÉPÔT ET
PLACEMENT DU QUÉBEC, as Co-Documentation Agent |
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By: | ||||
Name: | ||||
Title: | ||||
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SCHEDULE I
Additional Term B-1 Commitments and
Additional Revolving Credit Commitments
Additional Revolving Credit Commitments
Signature Page to Amendment Agreement
ANNEX I to
Agreement
Agreement
SECOND AMENDED AND RESTATED CREDIT AGREEMENT