Exhibit 10.21
EXECUTION COPY
CREDIT AGREEMENT
Dated as of June 16, 2005
Among
ONEX WIND FINANCE LP,
as the Borrower,
THE GUARANTORS NAMED HEREIN
as Guarantors,
THE LENDERS NAMED HEREIN
as the Lenders,
and
THE BOEING COMPANY,
as Agent
TABLE OF CONTENTS
Page
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ARTICLE 1 LOANS.......................................................... 1
1.1. Loans........................................................ 1
ARTICLE 2 INTEREST AND FEES.............................................. 2
2.1. Interest..................................................... 2
2.2. Maximum Interest Rate........................................ 3
ARTICLE 3 PAYMENTS AND PREPAYMENTS....................................... 3
3.1. Termination of the Facility.................................. 3
3.2. Repayment and Voluntary Prepayment of the Loans.............. 3
3.3. Payments by the Borrower..................................... 4
3.4. Taxes........................................................ 4
3.5. Change of Lending Office..................................... 8
3.6. Assignment of Commitments Under Certain Circumstances........ 8
ARTICLE 4 GENERAL WARRANTIES AND REPRESENTATIONS......................... 9
4.1. Authorization, Validity, and Enforceability of this Agreement
and the Loan Documents....................................... 9
4.2. Validity and Perfection of Security Interest................. 9
4.3. Organization and Qualification............................... 9
ARTICLE 5 AFFIRMATIVE COVENANTS OF THE MID-WESTERN LOAN PARTIES.......... 10
5.1. Financial Statements and other Information................... 10
5.2. Preservation of Existence.................................... 13
5.3. Additional Collateral; Additional Guarantors................. 13
5.4. Security Interests; Further Assurances....................... 14
5.5. Information Regarding Collateral............................. 14
ARTICLE 5-A AFFIRMATIVE COVENANTS OF BORROWER LOAN PARTIES............... 16
5.1A Reports and Other Information................................ 16
5.2A Preservation of Existence.................................... 17
5.3A Additional Collateral; Additional Guarantors................. 17
5.4A Security Interests; Further Assurances....................... 17
5.5A Information Regarding Collateral............................. 17
5.6A Use of Proceeds.............................................. 18
5.7A Tax Status................................................... 18
ARTICLE 6 NEGATIVE COVENANTS OF MID-WESTERN LOAN PARTIES................. 18
6.1. Prepayments of Subordinated Indebtedness..................... 18
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6.2. Restricted Payments.......................................... 18
6.3. Sponsor Management Fees...................................... 19
6.4. Anti-Layering................................................ 19
6.5. Sponsor Indebtedness......................................... 19
ARTICLE 6-A NEGATIVE COVENANTS OF THE BORROWER LOAN PARTIES.............. 20
6.1A Limitations on Activities.................................... 20
ARTICLE 7 CONDITIONS PRECEDENT........................................... 21
7.1. Conditions Precedent to the Effectiveness of This Agreement.. 21
7.2. Condition Precedent to Borrowings............................ 23
ARTICLE 8 DEFAULT; REMEDIES.............................................. 24
8.1. Events of Default............................................ 24
8.2. Remedies..................................................... 25
ARTICLE 9 TERM AND TERMINATION........................................... 26
9.1. Term and Termination......................................... 26
ARTICLE 10 AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS.. 26
10.1. Amendments and Waivers....................................... 26
10.2. Assignments.................................................. 27
ARTICLE 11 THE AGENT..................................................... 28
11.1. Appointment and Authorization................................ 28
11.2. Collateral Matters........................................... 28
11.3. Restrictions on Actions by Lenders........................... 28
11.4. Payments by Agent to Lenders................................. 29
11.5. Concerning the Collateral and the Related Loan Documents..... 29
ARTICLE 12 RESERVED...................................................... 29
ARTICLE 13 MISCELLANEOUS................................................. 29
13.1. Capitalized Terms, Rules of Construction, Annexes, Exhibits
and Schedules................................................ 29
13.2. No Waivers; Cumulative Remedies.............................. 29
13.3. Severability................................................. 30
13.4. Governing Law; Choice of Forum; Service of Process........... 30
13.5. WAIVER OF JURY TRIAL......................................... 31
13.6. Notices...................................................... 31
13.7. Binding Effect............................................... 32
13.8. Final Agreement.............................................. 32
13.9. Counterparts................................................. 32
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13.10. Captions..................................................... 32
13.11. Confidentiality.............................................. 32
13.12. Conflicts with Other Loan Documents.......................... 33
13.13. Intercreditor and Subordination Agreement.................... 33
13.14. Subordination of Obligations to all Senior Secured Debt...... 33
13.15. Assignment and Release of Borrower Loan Parties' Obligations. 34
13.16. Costs and Expenses........................................... 34
13.17. No Recourse Against Limited Partners......................... 34
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ANNEXES, EXHIBITS AND SCHEDULES
ANNEX A - DEFINED TERMS
EXHIBIT A - FORM OF BORROWING NOTICE
EXHIBIT B - FORM OF NOTE
EXHIBIT C - FORM OF SECTION 3.4 CERTIFICATE
EXHIBIT D - FORM OF GUARANTEE AGREEMENT
EXHIBIT E FORM OF NSULC TAX INDEMNITY AGREEMENT
EXHIBIT F - FORM OF ONEX GUARANTEE AGREEMENT
EXHIBIT G-1 - FORM OF ONEX PLEDGE AGREEMENT (GP INTERESTS)
EXHIBIT G-2 FORM OF ONEX PLEDGE AGREEMENT (LP INTERESTS)
EXHIBIT H - FORM OF PLEDGE AGREEMENT
EXHIBIT I - FORM OF REMARKETING AGREEMENT
EXHIBIT J - FORM OF SECURITY AGREEMENT
EXHIBIT K - FORM OF WLLC SUBORDINATION AGREEMENT
SCHEDULE 1.2(a) - COMMITMENTS
SCHEDULE 1.2(b) - KANSAS BOND FINANCING TERM SHEET
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CREDIT AGREEMENT
This Credit Agreement, dated as of June 16, 2005, among the lenders
listed on the signature pages hereof (such lenders, together with their
respective successors and assigns, are referred to hereinafter each individually
as a "Lender" and collectively as the "Lenders"), The Boeing Company, as Agent
for the Lenders (in its capacity as Agent, together with any successor Agent,
the "Agent"), Onex Wind Finance LP, a Delaware limited partnership (the
"Borrower") and the Guarantors (as defined herein).
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders provide a
subordinated, secured non-revolving line of credit in an aggregate amount of up
to $150,000,000; and
WHEREAS, as provided in Section 13.1, capitalized terms used in this
Agreement and not otherwise defined herein shall have the meanings ascribed
thereto in Annex A which is attached hereto and incorporated herein; the rules
of construction contained therein shall govern the interpretation of this
Agreement, and all Annexes, Exhibits and Schedules attached hereto are
incorporated herein by reference.
NOW, THEREFORE, in consideration of the mutual conditions and
agreements set forth in this Agreement, and for good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
LOANS
1.1. Loans.
(a) Amounts of Loans. Subject to the satisfaction of the condition
precedent set forth in Section 7.2, each Lender agrees to make a loan (any such
loan being referred to as a "Loan" and such loans being referred to collectively
as the "Loans") to the Borrower from time to time, on any day during the
Availability Period, in an amount not to exceed the amount of such Lender's
unfunded Commitment at such time; provided, that not more than one (1) Borrowing
may be made by the Borrower during any fiscal quarter of Mid-Western.
(b) Procedure for Borrowing.
(i) Each Borrowing by the Borrower shall be made upon the
Borrower's written notice delivered to the Agent in the form attached as
Exhibit A hereto (each a "Borrowing Notice"), which must be received by the
Agent no later thirty (30) days prior to the requested Funding Date,
specifying (x) the amount of the requested Borrowing, which shall be in a
minimum aggregate principal amount of $25,000,000 and integral multiples of
$5,000,000 in excess thereof (or the remaining amount of the aggregate
Commitments, if less), (y) the requested Funding Date, which must be the
first Business Day of a calendar quarter and (z) the account of the
Borrower to which the Agent shall transfer the proceeds of the Loans being
requested.
(ii) Following receipt of a Borrowing Notice, the Agent shall
promptly notify each Lender of the amount of its Pro Rata Share of the
requested Loans. Each Lender shall make the amount of its Loan available to
the Agent in immediately available funds to the account designated by the
Agent to the Lenders not later than 12:00 noon (New York time) on the day
specified in the Borrowing Notice; provided, that if any Lender fails to
make the amount of its Loan available to the Agent in immediately available
funds on or prior to such time, Boeing shall make the amount of such
Lender's Loan available to the Agent in immediately available funds at such
time. Upon satisfaction of the condition set forth in Section 7.2, the
Agent shall make all funds so received available to the Borrower by wire
transfer of such funds to the account of the Borrower specified in the
Borrowing Notice. For greater certainty, each Loan by a Lender shall
constitute a separate Loan from any other Loan or Loans made to the
Borrower by that Lender or any other Lender.
(c) Evidence of Loans. Upon the request of any Lender made through the
Agent, the Borrower shall execute and deliver to such Lender (through the Agent)
a promissory note substantially in the form of Exhibit B attached hereto and
made a part hereof (such promissory notes being hereinafter referred to
collectively as the "Notes" and each of such promissory notes being hereinafter
referred to individually as a "Note") which shall evidence such Lender's Loans.
ARTICLE 2
INTEREST AND FEES
2.1. Interest.
(a) Interest Rate. The Unpaid Amount of each Loan shall bear interest
from the date such Loan is made until the Unpaid Amount of such Loan is paid in
full in cash at a fluctuating per annum rate equal to the Interest Rate. All
interest charges shall be computed on the basis of a year of 360 days and actual
days elapsed.
(b) Interest Payments. The Borrower shall pay to the Agent, for the
ratable benefit of the Lenders, interest on the Unpaid Amount of each Loan in
arrears for the immediately preceding Interest Period for such Loan on February
15, May 15, August 15 and November 15 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "Interest Payment
Date"); provided, that if a Payment Block Event shall exist on any Interest
Payment Date, the Borrower shall not (and shall not be required to) pay the
interest on the Unpaid Amount of any Loan due on such Interest Payment Date and
such interest shall instead remain outstanding and be added to the Unpaid Amount
of such Loan (any such interest on a Loan not permitted to be paid on an
Interest Payment Date pursuant to this proviso being referred to herein as
"Deferred Interest"); provided, further, that the Borrower may at its option
(but shall not be required to) pay any Deferred Interest on any Loan resulting
from a Payment Block Event at any time after such Payment Block Event ceases to
exist.
(c) Default Rate. If an Event of Default under Section 8.1(a), (e) or
(f) or a Payment Block Event has occurred and is continuing, then, while any
such Event of Default or
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Payment Block Event is continuing, the Unpaid Amount of each Loan shall bear
interest at a per annum rate 2% greater than the rate which would otherwise be
applicable.
2.2. Maximum Interest Rate. In no event shall any interest rate
provided for hereunder exceed the maximum rate legally chargeable by any Lender
under applicable law for such Lender with respect to loans of the type provided
for hereunder (the "Maximum Rate"). If, in any month, any interest rate for the
Unpaid Amount of any Loan, absent such limitation, would have exceeded the
Maximum Rate, then the interest rate for the Unpaid Amount of such Loan for that
month shall be the Maximum Rate, and, if in future months, that interest rate
would otherwise be less than the Maximum Rate, then that interest rate for the
Unpaid Amount of such Loan shall remain at a Maximum Rate until such time as the
amount of interest paid hereunder for the Unpaid Amount of such Loan equals the
amount of interest which would have been paid on the Unpaid Amount of such Loan
if the same had not been limited by the Maximum Rate. In the event that, upon
payment in full of the Unpaid Amount of each Loan, the total amount of interest
paid or accrued under the terms of this Agreement for the Unpaid Amount of any
Loan is less than the total amount of interest which would, but for this Section
2.2, have been paid or accrued for the Unpaid Amount of such Loan if the
interest rate otherwise set forth in this Agreement for the Unpaid Amount of
such Loan had at all times been in effect, then the Borrower shall, to the
extent permitted by applicable law, pay to the Agent, for the account of the
Lenders, an amount equal to the excess of (a) the lesser of (i) the amount of
interest which would have been charged for the Unpaid Amount of such Loan if the
Maximum Rate had, at all times, been in effect or (ii) the amount of interest
which would have accrued for the Unpaid Amount of such Loan had the interest
rate otherwise set forth in this Agreement, at all times, been in effect over
(b) the amount of interest actually paid or accrued under this Agreement for the
Unpaid Amount of such Loan.
ARTICLE 3
PAYMENTS AND PREPAYMENTS
3.1. Termination of the Facility. The Borrower may terminate this
Agreement at any time by providing at least two (2) Business Days' written
notice to the Agent and prepaying in full the Unpaid Amount of each Loan,
together with accrued and unpaid interest thereon, and all other Obligations
then outstanding.
3.2. Repayment and Voluntary Prepayment of the Loans.
(a) Subject to the terms of the Intercreditor and Subordination
Agreement, the Borrower shall repay the Unpaid Amount of each Loan to the Agent,
for the account of the Lenders, on the Termination Date; provided, that the
Borrower shall not (and shall not be required to) make any such repayment unless
at least 91 days have elapsed since the Discharge of Senior Obligations.
(b) Subject to the terms of the Intercreditor and Subordination
Agreement, the Borrower may prepay the Unpaid Amount of any Loan in whole or in
part without premium or penalty, at any time and from time to time. All
voluntary prepayments of the Unpaid Amount of any Loan shall be accompanied by
the payment of all accrued but unpaid interest on the amount
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of the Unpaid Amount of such Loan being prepaid to the date of prepayment.
Amounts prepaid in respect of the Unpaid Amount of any Loan may not be
reborrowed.
3.3. Payments by the Borrower. All payments by the Borrower shall be
made to the Agent for the account of the Lenders, at the account designated by
the Agent, and shall be made in Dollars and in immediately available funds, no
later than 5:00 p.m. (New York time) on the date specified herein. Any payment
received by the Agent after such time shall be deemed (for purposes of
calculating interest only) to have been received on the following day and any
applicable interest shall continue to accrue.
3.4. Taxes.
(a) All payments by the Loan Parties of principal of, and interest on,
the Loans and all other amounts (including fees) payable hereunder shall be made
without setoff, counterclaim or other defense, free and clear of, and without
deduction or withholding for, any and all present or future income, excise,
stamp or franchise taxes and other taxes, fees, duties, assessments, deductions,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority on the Agent, any Lender, or any assignee of a Lender (a
"Transferee"), including any interest, additions to tax or penalties applicable
thereto ("Taxes"), except as required by applicable law. If any Indemnified
Taxes (defined below) are required by applicable law, rule or regulation to be
withheld or deducted from any payment by a Loan Party or required to be paid by
a Loan Party on behalf of the Agent or a Lender or Transferee, then such Loan
Party shall so withhold or deduct and remit or so pay such Taxes in accordance
with such requirement. In the event that any withholding or deduction from any
payment to be made by a Loan Party hereunder (or any payment by a Loan Party on
behalf of the Agent or a Lender or Transferee as a result of the accrual or
incurrence of any Obligation) is required in respect of any Indemnified Taxes
pursuant to any applicable law, rule or regulation then such Loan Party will:
(i) timely pay directly to the relevant authority in accordance
with applicable law the full amount required to be so withheld, deducted or
paid;
(ii) promptly forward to the Agent an official receipt or other
documentation (or copy thereof) reasonably satisfactory to the Agent
evidencing such payment to such authority; and
(iii) pay to the Agent for the account of the Agent and the
Lenders and Transferees, as the case may be, such additional amount or
amounts as are necessary to ensure that the net amount actually received by
the Agent and each Lender or Transferee, as the case may be, will equal the
full amount the Agent or such Lender or Transferee, as the case may be,
would have received had no such withholding, deduction or payment
(including any withholding, deduction or payment applicable to additional
amounts payable under this Section 3.4) been required.
For purposes hereof, "Indemnified Taxes" shall mean (i) any Taxes imposed under
Part XIII of the Income Tax Act (Canada) (as the same may be amended,
supplemented or replaced from time to time) and (ii) all Taxes other than Taxes
imposed on or measured by the recipient's net income or taxable capital by a
jurisdiction under the laws of which such Lender or Transferee is
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organized or incorporated or in which its principal executive office or
applicable lending office is located or in which it conducts a trade or business
or has a permanent establishment (other than a trade, business or permanent
establishment deemed to arise by virtue of the transactions contemplated by this
Agreement) or is otherwise subject to such Taxes without regard to the
transactions contemplated by this Agreement (provided, however, in the case of
Boeing as Agent or Lender, or in the case of a Transferee that is an Affiliate
of Boeing and is a United States person within the meaning of section
7701(a)(30) of the United States Internal Revenue Code of 1986, as amended
(Boeing, in such capacity, and any such Transferee, are referred to herein as a
"Boeing Lender"), Indemnified Taxes shall include any Taxes imposed on or
measured by the recipient's net income or taxable capital by any jurisdiction
other than the United States or a State or any political subdivision of the
United States or a State (as the terms "United States" and "State" are defined
in sections 7701(a)(9) and 7701(a)(10) of the United States Internal Revenue
Code of 1986, as amended) to which Boeing or such Transferee would not have been
subject but for the transactions contemplated by this Agreement (an "Indemnified
Foreign Tax").
(b) The Loan Parties agree to timely pay any and all present or future
stamp or documentary taxes and any other excise or property taxes, charges or
similar levies (including interest, fines and penalties in addition to tax)
arising from any payment made under any Loan Document or from the execution,
delivery, registration or enforcement of, or otherwise with respect to, any
Agent's Lien, Borrowing, Borrowing Notice, Commitment, Loan, Obligation, or Loan
Document ("Other Taxes").
(c) If any Indemnified Taxes or Other Taxes are directly asserted
against the Agent or any Lender or Transferee with respect to any payment
received by the Agent or such Lender or Transferee hereunder, the Agent or such
Lender or Transferee may pay such Indemnified Taxes or Other Taxes and the
Borrower or other Loan Party will promptly pay to the Agent, Lender or
Transferee an amount equal to such Indemnified Taxes or Other Taxes so paid by
the Agent, Lender or Transferee plus such additional amounts (including any
penalties, interest or expenses) as shall be necessary in order that the net
amount received by such Person after the payment of such Indemnified Taxes
(including any Indemnified Taxes on such additional amount) or Other Taxes shall
equal the amount such Person would have received had such Indemnified Taxes or
Other Taxes not been asserted. In addition, the Borrower or other Loan Party
shall also reimburse the Agent and each Lender or Transferee, upon the written
request of the Agent or such Lender or Transferee, for net additional Taxes
imposed on or measured by the net income of such Person pursuant to the laws of
the United States of America or any state or political subdivision thereof, or
the jurisdiction in which such Person is organized or incorporated, or a
jurisdiction in which the principal executive office or lending office of such
Person is located or in which such Person conducts a trade or business or has a
permanent establishment, or under the laws of any political subdivision or
taxing authority of any such jurisdiction, as such Person shall determine are or
were payable by such Person, in respect of amounts payable to such Person
pursuant to this Section 3.4 in respect of Indemnified Taxes imposed as a
consequence of payments by the Borrower or other Loan Party, taking into account
the amount of Indemnified Taxes that are (x) allowed as a deduction in
determining taxes imposed on or measured by the net income or allowed as a
credit against any taxes imposed on or measured by net income and (y) payable to
such Person pursuant to this Section 3.4.
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(d) If the Borrower or other Loan Party fails to pay any Indemnified
Taxes or Other Taxes when due to the appropriate taxing authority or fails to
remit to the Agent, for the account of the Agent or the respective Lender or
Transferee, the required receipts or other required documentary evidence, such
Borrower or other Loan Party shall indemnify the Lenders and Transferees for any
incremental Indemnified Taxes, Other Taxes, interest, penalties or other costs
(including reasonable attorneys' fees and expenses) that may become payable by
the Agent, any Lender or Transferee as a result of any such failure. For
purposes of this Section 3.4, a distribution hereunder by the Agent to or for
the account of the Agent or any Lender or Transferee shall be deemed a payment
by the Borrower or other Loan Party.
(e) Each Lender or Transferee that is organized under the laws of a
jurisdiction other than the United States of America or any state or political
subdivision thereof shall, on or prior to the Closing Date (in the case of each
Lender that is a party hereto on the Closing Date) or on or prior to the date of
any assignment, participation or change in the designated lending office
hereunder (in the case of a Transferee), execute and deliver, if legally able to
do so, to the Borrower and the Agent (i) one or more (as the Borrower or the
Agent may reasonably request) accurate and complete original signed copies of
United States Internal Revenue Service Forms W 8ECI or W 8BEN or such other
forms or documents (or successor forms or documents), appropriately completed,
as may be applicable to establish the extent, if any, to which a payment to such
Lender or Transferee is exempt from or entitled to a reduced rate of withholding
or deduction of Taxes or (ii) if the Lender or Transferee is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either
Internal Revenue Service Form W 8ECI or Form W 8BEN (with respect to a complete
exemption under an income tax treaty) pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit C (any such certificate, a
"Section 3.4 Certificate") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W 8BEN (with respect to the portfolio
interest exemption) (or successor form) certifying to such Lender's or
Transferee's entitlement as of such date to a complete exemption from United
States withholding tax with respect to payments of interest to be made under
this Agreement and under any Note. In addition, each such Lender and Transferee
agrees that from time to time after the Closing Date, when a lapse in time or
change in the Lender's or Transferee's circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will, to the
extent legally able to do so, deliver to the Borrower or the Agent two new
accurate and complete original signed copies of Internal Revenue Service Form W
8ECI, Form W 8BEN (with respect to the benefits of any income tax treaty), or
Form W 8BEN (with respect to the portfolio interest exemption) and a Section 3.4
Certificate, as the case may be, and such other forms as may be required in
order to confirm or establish the entitlement of such Lender to a continued
exemption from or reduction in United States withholding tax with respect to
payments under the Loan Documents. In addition, if legally able to do so, each
Lender or Transferee that is organized under the laws of a jurisdiction other
than Canada or any political subdivision thereof shall deliver on or prior to
the Closing Date (in the case of each Lender that is a party hereto on the
Closing Date) or on or prior to the date of any assignments or participations
(in the case of a Transferee) to the Borrower and Agent, either written
certification that it is not entitled to any exemption or reduction of
withholding tax under the laws of Canada or, if it is so entitled, such properly
completed and executed documentation as will permit such payments to be made
without withholding or deduction of Taxes under the laws of Canada or at a
reduced rate. In addition, each Lender and
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Transferee agrees that from time to time after the Closing Date, when a lapse in
time or change in the Lender's or Transferee's circumstances renders the
previous certification obsolete or inaccurate in any material respect, it will,
to the extent legally able to do so, deliver to the Borrower and the Agent such
forms or certifications as may be required in order to confirm or establish the
entitlement of such Lender, if it is so entitled, to a continued exemption from
or reduction in Canadian withholding tax with respect to payments under the Loan
Documents.
(f) The Borrower shall not be required to indemnify or to pay any
additional amounts to any Lender or Transferee with respect to any Indemnified
Taxes pursuant to this Section 3.4 to the extent that (i) any obligation of the
Borrower to withhold, deduct or pay amounts with respect to such Indemnified Tax
(other than a Tax imposed by Canada and other than an Indemnified Foreign Tax)
existed under generally accepted interpretation and application of the law on
the date such Lender or Transferee other than a Boeing Lender became a party to
this Agreement or otherwise becomes a Transferee, except to the extent that, at
the time such Lender or Transferee becomes a party to this Agreement or
otherwise becomes a Transferee, such Person's assignor was already entitled to
receive indemnification or additional amounts from a Loan Party with respect to
any such Indemnified Tax under the provisions hereunder; provided that this
clause (i) shall not apply to any Tax imposed on a Lender or Transferee in
connection with an interest or participation in any Loan or other obligation
that such Lender or Transferee was required to acquire pursuant to Section 3.6,
(ii) to the extent such Indemnified Taxes are imposed solely because any Lender
or Transferee fails to timely provide the forms or certificates required by the
provisions of the immediately preceding paragraph or (iii) in the case of a
payment of a U.S. source fee (other than a fee treated as interest for U.S.
federal income tax purposes) to a Lender or Transferee that is not a Boeing
Lender and that is described in clause (ii) of Section 3.4(e), to the extent
that such forms or certificates do not establish a complete exemption from U.S.
withholding taxes with respect to such payment. Notwithstanding anything to the
contrary, it is understood and agreed, for the avoidance of doubt, that the
obligation of the Loan Parties to indemnify for Indemnified Taxes withheld or
deducted from any payment (including, without limitation, fees) to be made by
the Loan Parties hereunder and to pay additional amounts under this Section 3.4
shall apply with respect to any and all Indemnified Taxes imposed on or with
respect to the Agent and each Lender and Transferee as a result of a change in
law or regulation or a change in the interpretation or application thereof by
any Governmental Authority having jurisdiction over such Person occurring after
the time such Person becomes a party to this Agreement.
(g) In the event that the Agent or any Lender or Transferee determines
that any event or circumstance that will lead to a claim by it under this
Section 3.4 has occurred, the Agent or such Lender or Transferee will use
commercially reasonable efforts to so notify each Borrower; provided that any
failure to provide such notice shall in no way impair the rights of the Agent or
any Lender or any Transferee to demand and receive compensation under this
Section 3.4.
(h) If the Borrower pays any additional amount under this Section 3.4
to a Lender and such Lender determines in its sole discretion that it has
actually realized in connection therewith a refund or any reduction of, or
credit against, its Tax liabilities (a "Tax Benefit") such Lender shall pay to
such Borrower an amount that the Lender shall, in its sole
7
discretion, determine is equal to the after-tax net benefit obtained, if any, by
the Lender as consequence of such Tax Benefit net of all out-of-pocket expenses
of such Lender and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such Tax Benefit); provided,
however, that (i) any Lender may determine, in its sole discretion consistent
with the policies of such Lender, whether to seek a Tax Benefit; (ii) any Taxes
that are imposed on a Lender as a result of a disallowance or reduction
(including through the expiration of any tax credit carryover or carryback of
such Lender that otherwise would not have expired) of any Tax Benefit with
respect to which such Lender has made a payment to such Borrower pursuant to
this Section 3.4(h) shall be treated as Tax for which such Borrower is obligated
to indemnify such Lender pursuant to this Section 3.4; (iii) nothing in this
Section 3.4(h) shall require the Lender to disclose any confidential information
to any Loan Party (including, without limitation, its tax returns); and (iv)
notwithstanding anything to the contrary, in no event will any Lender be
required to pay any amount to such Borrower the payment of which would place
such Lender in a less favorable net after-tax position than such Lender would
have been in if the additional amounts giving rise to such Tax Benefits had
never been paid or if the applicable Borrowing had been made by Mid-Western
directly from such Lender.
3.5. Change of Lending Office. Each Lender (or Transferee) other than
Boeing (or any Boeing Lender) agrees that, upon the occurrence of any event
giving rise to the operation of Section 3.4 with respect to such Lender (or
Transferee), it will, if requested by the Borrower, use commercially reasonable
efforts (subject to overall policy considerations of such Lender (or
Transferee)) to designate another lending office for any Loans affected by such
event with the object of avoiding the consequences of such event; provided that
such designation is made on terms that, in the sole judgment of such Lender (or
Transferee), cause such Lender (or Transferee) and its respective lending
offices to suffer no material economic, legal or regulatory disadvantage; and
provided, further, that nothing in this Section 3.5 shall affect or postpone any
of the obligations of the Borrower or the rights of any Lender (or Transferee)
pursuant to Section 3.4.
3.6. Assignment of Commitments Under Certain Circumstances. In the
event that (a) the Borrower shall be required to make additional payments to any
Lender under Section 3.4 (each, an "Increased Cost Lender") then, with respect
to each such Increased Cost Lender (the "Terminated Lender"), the Borrower shall
have the right, but not the obligation, at its own expense, upon notice to such
Terminated Lender and the Agent, to replace such Terminated Lender with (x)
another Lender or (y) an assignee (in accordance with and subject to the
restrictions contained in Section 10.2), and such Terminated Lender hereby
agrees to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in Section 10.2) all its interests, rights and
obligations under this Agreement to such other Lender or assignee; provided,
however, that no Terminated Lender shall be obligated to make any such
assignment unless (i) such assignment shall not conflict with any law or any
rule, regulation or order of any Governmental Authority and (ii) the affected
Terminated Lender shall have been paid in immediately available funds on the
date of such assignment the principal of and interest accrued to the date of
payment on the Loans made by such Terminated Lender and any other amounts
required to be paid by any Loan Party to such Terminated Lender under this
Agreement (including any amounts required to be paid under Section 3.4.with
respect to the payments described in this clause (ii) or otherwise).
8
ARTICLE 4
GENERAL WARRANTIES AND REPRESENTATIONS
Each Loan Party warrants and represents to the Agent and the Lenders
on the Closing Date that:
4.1. Authorization, Validity, and Enforceability of this Agreement and
the Loan Documents. Such Loan Party has the power and authority to execute,
deliver and perform it obligations under this Agreement and the other Loan
Documents to which it is a party, to incur the indebtedness under the Loan
Documents to which it is a party, and to grant to the Agent Liens upon and
security interests in the Collateral in which it has an interest. Such Loan
Party has taken all necessary action (including obtaining approval of its
stockholders or other equityholders if necessary) to authorize its execution,
delivery and performance of this Agreement and the other Loan Documents to which
it is a party. This Agreement and the other Loan Documents to which it is a
party have been duly executed and delivered by such Loan Party, and constitute
the legal, valid and binding obligations of such Loan Party, enforceable against
it in accordance with their respective terms except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law). Such Loan Party's execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party do not conflict
with, or constitute a violation or breach of, the terms of (a) any contract,
mortgage, lease, agreement, indenture or instrument to which such Loan Party is
a party, (b) any Requirement of Law applicable to such Loan Party, or (c) the
certificate or articles of incorporation or by-laws or other organizational
documents of such Loan Party, except in the case of clause (a) or (b) as would
not reasonably be expected to have a Material Adverse Effect.
4.2. Validity and Perfection of Security Interest. The provisions of
this Agreement, the Mortgage(s), and the other Loan Documents to which such Loan
Party is a party create legal and valid Liens on all the Collateral in which it
has an interest in favor of the Agent, for the ratable benefit of the Agent and
the Lenders, and upon the filing by the Agent of Uniform Commercial Code
financing statements, Mortgages and security documents relating to intellectual
property in the appropriate governmental filing offices, possession by the Agent
(or the Senior Agent as bailee for the Agent under the Intercreditor and
Subordination Agreement) of Collateral which can be perfected by possession
only, and "control" by the Agent (or the Senior Agent as bailee for the Agent
under the Intercreditor and Subordination Agreement) of any of Collateral which
can be perfected by "control" only, such Liens constitute perfected and
continuing Liens on all such Collateral. The provisions of each of the Onex
Pledge Agreements create legal and valid Liens on all the Securities Collateral
(as defined in each of the Onex Pledge Agreements) in favor of the Agent, and
upon possession by the Agent (or the Senior Agent as bailee for the Agent under
the Intercreditor and Subordination Agreement) of such Securities Collateral or
upon the filing of appropriate financing statements, such Liens shall constitute
perfected and continuing Liens on all such Securities Collateral.
4.3. Organization and Qualification. Such Loan Party (a) is duly
organized and validly existing in good standing under the laws of the state of
its organization, (b) is
9
qualified to do business and is in good standing in those jurisdictions in which
qualification is necessary in order for it to own or lease its property and
conduct its business, except to the extent the failure to be so qualified or in
good standing would not reasonably be expected to have a Material Adverse Effect
and (c) has all requisite power and authority to conduct its business and to own
its property. The Borrower was formed on May 16, 2005 and the Borrower
Subsidiaries were formed on May 26, 2005, in the case of NSULC, and May 24,
2005, in the case of WLLC Each of the Borrower and the Borrower Subsidiaries was
formed for the primary purpose of effecting the Term Transaction and as of the
Closing Date has no material assets (other than, in the case of the Borrower,
its ownership of all the Equity Interests of NSULC, in the case of NSULC, its
ownership of Equity Interests of WLLC and, in the case of WLLC, the loans
payable to it by Mid-Western (made as a part of the Term Transaction)) or
liabilities (other than its obligations under the Loan Documents and the
Citigroup Credit Facilities).
ARTICLE 5
AFFIRMATIVE COVENANTS OF THE MID-WESTERN LOAN PARTIES
So long as any Lender shall have any Commitment hereunder or any
Obligations (other than contingent indemnification Obligations for which no
claim has been made) shall remain outstanding, each Mid-Western Loan Party
shall:
5.1. Financial Statements and other Information. Furnish, or cause to
be furnished, to the Agent copies of the following financial statements,
reports, notices and information:
(a) as soon as available and in any event within 45 days after the end
of each of the first three Fiscal Quarters of each Fiscal Year of
Mid-Western, a consolidated balance sheet of Mid-Western and its
Subsidiaries as of the end of such Fiscal Quarter and consolidated
statements of earnings and cash flow of Mid-Western and its Subsidiaries
for such Fiscal Quarter and for the same period in the prior Fiscal Year
and for the period commencing at the end of the previous Fiscal Year and
ending with the end of such Fiscal Quarter (including a note with a
consolidating balance sheet and statements of earnings and cash flows for
each less than wholly-owned Subsidiary of Mid-Western that is not a
Guarantor), certified by a Financial Officer of Mid-Western as fairly
presenting in all material respects the financial position, results of
operations and cash flows of Mid-Western and its Subsidiaries in accordance
with GAAP consistently applied and a narrative report and management's
discussion and analysis, in the form provided to the Senior Agent, of the
financial condition and results of operations for such Fiscal Quarter and
the then elapsed portion of the Fiscal Year, as compared to the comparable
periods in the previous Fiscal Year (it being understood that such
information may be furnished in the form of a Form 10-Q)(provided that in
each case for the first four Fiscal Quarters after the Closing Date, to the
extent such data with respect to the same period of the prior Fiscal Year
or an earlier period of the same Fiscal Year (as the case may be) is not
available, such comparison shall be only to the amounts budgeted for the
same period);
10
(b) as soon as available and in any event within 90 days after the end
of each Fiscal Year of Mid-Western (other than with respect to the Fiscal
Year ending December 31, 2005, for which reports must be provided within
105 days of such Fiscal Year end) a copy of the annual audit report for
such Fiscal Year for Mid-Western and its Subsidiaries, including therein a
consolidated balance sheet of Mid-Western and its Subsidiaries as of the
end of such Fiscal Year and consolidated statements of earnings and cash
flow of Mid-Western and its Subsidiaries for such Fiscal Year (including a
note with a consolidating balance sheet and statements of earnings and cash
flows for each less than wholly-owned Subsidiary of Mid-Western that is not
a Guarantor), in each case certified in the same manner and by the same
independent public accounting firm as is provided to the Senior Agent
(provided, that following the Discharge of Senior Obligations, such
financial statements shall be certified in the same manner and by the same
independent public accounting firm that provided such certifications of the
financial statements for the Fiscal Year ended immediately preceding the
Discharge of Senior Obligations or in such other manner or by such other
independent public accounting firm that is reasonably acceptable to the
Agent), together with a narrative report and management's discussion and
analysis, in the form provided to the Senior Agent, of the financial
condition and results of operations of Mid-Western for such Fiscal Year, as
compared to amounts for the previous Fiscal Year (it being understood that
such information may be furnished in the form of a Form 10-K)(provided that
in each case for the first Fiscal Year after the Closing Date, to the
extent such data with respect the prior Fiscal Year is not available, such
comparison shall be only to the amounts budgeted for the same period,
provided that such comparison need not be covered by the certification of
the independent public accounting firm referred to above);
(c) no later than January 15 of each Fiscal Year of Mid-Western,
commencing with the Fiscal Year beginning January 1, 2006, a detailed
consolidated budget by Fiscal Quarter for such Fiscal Year beginning
January 1, 2006 (including a projected consolidated balance sheet and
related statements of projected operations and cash flow as of the end of
and for each Fiscal Quarter during such Fiscal Year beginning January 1,
2006) and for each such Fiscal Year thereafter through December 31,
2011(including a projected consolidated balance sheet and related
statements of projected operations and cash flow as of the end of each such
Fiscal Year) and, promptly when available, any significant revisions of
such budgets;
(d) promptly upon receipt thereof, copies of all material written
reports submitted to Mid-Western by independent certified public
accountants in connection with each annual, interim or special audit of the
books of Mid-Western or any of its Subsidiaries made by such accountants,
including any management letters submitted by such accountants to
management in connection with their annual audit;
(e) promptly and in any event within five days after becoming aware of
the occurrence of any Default or Event of Default, a statement of a
Financial Officer of Mid-Western setting forth details of such Default or
Event of Default and the action which Mid-Western has taken and proposes to
take with respect thereto;
11
(f) promptly and in any event within five Business Days after (i) the
occurrence of any adverse development with respect to any litigation,
action or proceeding against a Mid-Western Loan Party or any of its
Subsidiaries that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect or (ii) the commencement of any
litigation, action or proceeding against a Mid-Western Loan Party or any of
its Subsidiaries that could reasonably be expected to have a Material
Adverse Effect or that purports to affect the legality, validity or
enforceability of this Agreement or any other Loan Document or the
transactions contemplated hereby or thereby, notice thereof and, to the
extent provided to the Senior Agent, copies of all documentation relating
thereto;
(g) promptly after the sending or filing thereof, copies of all
reports which Holdings sends to its security holders generally in their
capacity as such, and all reports, registration statements (other than on
Form S-8 or any successor form) or other materials (including affidavits
with respect to reports) which Holdings or any of its Subsidiaries or any
of their officers files with the SEC or any national securities exchange;
(h) promptly upon becoming aware of the taking of any specific actions
by Holdings or any other Person to terminate any Pension Plan (other than a
termination pursuant to Section 4041(b) of ERISA which can be completed
without Holdings or any ERISA Affiliate having to provide more than $1.0
million in addition to the normal contribution required for the plan year
in which termination occurs to make such Pension Plan sufficient), or the
occurrence of an ERISA Event which could result in a Lien on the assets of
any Mid-Western Loan Party or any of its Subsidiaries or in the incurrence
by a Mid-Western Loan Party of any liability, fine or penalty which could
reasonably be expected to have a Material Adverse Effect, or any increase
in the contingent liability of a Mid-Western Loan Party with respect to any
post-retirement Welfare Plan benefit if the increase in such contingent
liability which could reasonably be expected to have a Material Adverse
Effect, notice thereof and copies of all documentation relating thereto;
(i) upon request by the Agent, copies of: (i) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed by
any Mid-Western Loan Party or ERISA Affiliate with the Internal Revenue
Service with respect to each Pension Plan; (ii) to the extent available,
the most recent actuarial valuation report for each Pension Plan; (iii) all
notices received by any Mid-Western Loan Party or ERISA Affiliate from a
Multiemployer Plan sponsor or any governmental agency concerning an ERISA
Event; and (iv) such other documents or governmental reports or filings
relating to any Plan as the Agent shall reasonably request;
(j) promptly and in any event within five Business Days, notice of any
other development that could reasonably be expected to have a Material
Adverse Effect;
(k) promptly and in any event within five Business Days after becoming
aware thereof, notice of any Payment Block Event; and
12
(l) promptly, from time to time, such other information respecting the
condition or operations, financial or otherwise, of Holdings or any of its
Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
5.2. Preservation of Existence. Do or cause to be done all things
necessary to preserve, renew and maintain in full force and effect the legal
existence of Mid-Western.
5.3. Additional Collateral; Additional Guarantors.
(a) (i) Prior to the Discharge of Senior Obligations and subject to
the Intercreditor and Subordination Agreement, with respect to any property that
is pledged to the Senior Agent as collateral under the Citigroup Credit
Facilities, substantially concurrently with such collateral being granted to the
secured parties under the Citigroup Credit Facilities (whether such collateral
is acquired after the Closing Date or otherwise) (x) execute and deliver to the
Agent such amendments or supplements to the Security Agreement, Pledge Agreement
or such other documents (including, in the case of acquired Real Property,
Mortgages and the items listed in Section 7.1(b) and (c) that are delivered to
the Senior Agent) as the Agent shall reasonably deem necessary to grant to the
Agent, for the benefit of the Secured Parties, a Lien on such property, and (y)
take all actions necessary to cause such Lien to be duly perfected to the extent
required by the applicable Security Document in accordance with all applicable
Requirements of Law, including the filing of financing statements in such
jurisdictions as may be reasonably requested by the Agent, in each case subject
to the Intercreditor and Subordination Agreement.
(ii) Following the Discharge of Senior Obligations, with respect to
acquisitions of (x) property of the type that would have constituted Collateral
pursuant to the Citigroup Credit Facilities as in effect immediately prior to
the Discharge of Senior Obligations and/or (y) Real Estate that would have been
required to be subject to a mortgage in favor of the Senior Agent under the
Citigroup Credit Facilities as in effect immediately prior to the Discharge of
Senior Obligations, within thirty (30) days after the acquisition of such
property or Real Estate (x) execute and deliver to the Agent such amendments or
supplements to the Security Agreement or Pledge Agreement or such Mortgages or
other documents as the Agent shall reasonably deem necessary to grant to the
Agent, for the benefit of the Secured Parties, a Lien on such property or Real
Estate, and (y) take all actions necessary to cause such Lien to be duly
perfected to the extent required by the applicable Security Document in
accordance with all applicable Requirements of Law, including the filing of
financing statements in such jurisdictions as may be reasonably requested by the
Agent.
(b) (i) Prior to the Discharge of Senior Obligations and subject to
the Intercreditor and Subordination Agreement, if any Subsidiary (including any
newly formed or newly acquired Subsidiary) of a Mid-Western Loan Party
guarantees the obligations of the Borrower or Mid-Western under the Citigroup
Credit Facilities, then substantially concurrently with such Subsidiary
guaranteeing the obligations under the Citigroup Credit Facilities (i) deliver
to the Agent (or the Senior Agent as bailee for the Agent under the
Intercreditor and Subordination Agreement) the certificates, if any,
representing all of the Equity Interests of such Subsidiary (provided, that with
respect to any Foreign Subsidiary of Mid-Western, in no event shall more than
65% of the voting Equity Interests of such Foreign Subsidiary be subject to the
13
Agent's Lien or pledged under the Security Documents), together with undated
stock powers or other appropriate instruments of transfer executed and delivered
in blank by a duly authorized officer of the holder(s) of such Equity Interests
and (ii) cause such Subsidiary (A) to execute a joinder agreement or such
comparable documentation to become a Guarantor hereunder and a joinder agreement
to the Guarantee Agreement, the Security Agreement and the Pledge Agreement, in
each case in the form of Annex I to the Security Agreement and Annex I to the
Guarantee Agreement or such other form that is reasonably satisfactory to the
Agent, and (B) to take all actions reasonably requested by the Agent to cause
the Lien created by the Security Agreement and Pledge Agreement to be duly
perfected to the extent required by such agreements in accordance with all
applicable Requirements of Law, including the filing of financing statements in
such jurisdictions as may be reasonably requested by the Agent.
(ii) Following the Discharge of Senior Obligations, in the event that
any Person becomes a direct or indirect Subsidiary of Mid-Western that would
have been required to become a Guarantor under the Citigroup Credit Facilities
as in effect immediately prior to the Discharge of Senior Obligations, then
promptly thereafter (x) deliver to the Agent the certificates, if any,
representing all of the Equity Interests of such Subsidiary (provided, that with
respect to any Foreign Subsidiary of Mid Western, in no event shall more than
65% of the voting Equity Interests of such Foreign Subsidiary be subject to the
Agent's Lien or pledged under the Security Documents), together with undated
stock powers or other appropriate instruments of transfer executed and delivered
in blank by a duly authorized officer of the holder(s) of such Equity Interests
and (y) cause such Subsidiary (A) to execute a joinder agreement or such
comparable documentation to become a Guarantor hereunder and a joinder agreement
to the Guarantee Agreement, the Security Agreement and the Pledge Agreement, in
each case in the form of Annex I to the Security Agreement and Annex I to the
Guarantee Agreement or such other form that is reasonably satisfactory to the
Agent, and (B) to take all actions reasonably requested by the Agent to cause
the Lien created by the Security Agreement and Pledge Agreement to be duly
perfected to the extent required by such agreements in accordance with all
applicable Requirements of Law, including the filing of financing statements in
such jurisdictions as may be reasonably requested by the Agent.
5.4. Security Interests; Further Assurances. Subject to the
Intercreditor and Subordination Agreement, promptly, upon the reasonable request
of the Agent, execute, acknowledge and deliver, or cause the execution,
acknowledgment and delivery of, and thereafter register, file or record, or
cause to be registered, filed or recorded, in an appropriate governmental
office, any document or instrument supplemental to or confirmatory of the
Security Documents or otherwise reasonably deemed by the Agent necessary for the
continued validity, perfection and priority of the Liens on the Collateral
covered thereby. Deliver or cause to be delivered to the Agent from time to time
such other documentation, consents, authorizations, approvals and orders in form
and substance reasonably satisfactory to the Agent as the Agent shall reasonably
deem necessary to perfect or maintain the Liens on the Collateral pursuant to
the Security Documents.
5.5. Information Regarding Collateral.
(a) Furnish to the Agent prompt written notice of any change (i) in
such Mid-Western Loan Party's legal name, (ii) in the location of any
Mid-Western Loan Party's
14
chief executive office or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility),
(iii) in any Mid-Western Loan Party's corporate structure, (iv) in any
Mid-Western Loan Party's Federal Taxpayer Identification Number or
organizational identification number or (v) in any Mid-Western Loan Party's
jurisdiction of organization. Holdings and Mid-Western will not, and will not
permit any other Mid-Western Loan Party to, effect or permit any change referred
to in the preceding sentence unless (i) it shall have given the Agent written
notice not later than 10 days after such change and (ii) all filings have been
made under the UCC or otherwise that are required in order for the Agent to
continue at all times following such change to have a valid, legal and perfected
security interests in all the Collateral. Holdings and Mid-Western will, and
will cause each other Mid-Western Loan Party to, promptly notify the Agent if
any material portion of the Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial statements
with respect to the preceding Fiscal Year pursuant to clause (b) of Section 5.1,
Mid-Western shall deliver to the Agent a certificate of a Financial Officer or
the chief legal officer of Mid-Western (A) updating, to the extent necessary, to
reflect (i) the list of owned and leased Real Estate, (ii) any changes to the
names or locations of any Loan Party or (iii) any other information reasonably
requested by the Agent with respect to the Collateral or (B) confirming that
there has been no change in such information since the date of the Perfection
Certificate or the latest supplement to the Perfection Certificate.
5.6 Insurance.
Following the Discharge of Senior Obligations, maintain with
financially sound and responsible insurance companies insurance with respect to
its properties material to the business of the Loan Parties and their
Subsidiaries against such casualties and contingencies and of such types and in
such amounts with such deductibles as is customary in the case of similar
businesses operating in the same or similar locations (including, without
limitation, (i) physical hazard insurance on an "all risk" basis including an
industry standard Lenders Loss Payable Clause, (ii) commercial general liability
against claims for bodily injury, death or property damage and including the
Agent as an additional insured party or, in the case of property insurance, loss
payee, (iii) boiler and machinery insurance covering all electrical and
mechanical equipment and vessels under pressure constituting Collateral, (iv)
business interruption insurance, (v) worker's compensation insurance as may be
required by any Requirement of Law and (vi) such other insurance against risks
as the Agent may from time to time reasonably require. Each such insurance
policy shall provide that it may not be cancelled or otherwise terminated
without at least thirty (30) days' prior written notice, and ten (10) days in
the event of nonpayment of premium, to the Agent and to the extent any such
policy is cancelled, adversely modified or renewed, the Mid-Western Loan Parties
shall deliver a Certificate of Insurance to the Agent, together with evidence
reasonably satisfactory to the Agent of the payment of the premium therefor.
Following the Discharge of Senior Obligations, each of Holdings and
Mid-Western will, and will cause each other Mid-Western Loan Party to, with
respect to each piece of Real Estate subject to a Mortgage, obtain flood
insurance in such total amount as the Agent or the Majority Lenders may from
time to time require, if at any time the area in which any improvements are
15
located on any such Real Estate is designated a "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), and otherwise comply with the National Flood Insurance
Program as set forth in the Flood Disaster Protection Act of 1973, as amended
from time to time.
ARTICLE 5-A
AFFIRMATIVE COVENANTS OF BORROWER LOAN PARTIES
So long as any Lender shall have any Commitment hereunder or any
Obligations (other than contingent indemnification Obligations for which no
claim has been made) shall remain outstanding:
5.1A Reports and Other Information. Each Borrower Loan Party shall
furnish, or cause to be furnished, to the Agent copies of the following
financial statements, reports, notices and information:
(a) promptly and in any event within five days after becoming aware of
the occurrence of any Default or Event of Default, a statement of an
authorized representative of the general partner of the Borrower setting
forth details of such Default or Event of Default and the action which the
Borrower has taken and proposes to take with respect thereto;
(b) promptly and in any event within five Business Days after (i) the
occurrence of any adverse development with respect to any litigation,
action or proceeding against a Borrower Loan Party or any of its
Subsidiaries that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect or (ii) the commencement of any
litigation, action or proceeding against a Borrower Loan Party or any of
its Subsidiaries that could reasonably be expected to have a Material
Adverse Effect or that purports to affect the legality, validity or
enforceability of this Agreement or any other Loan Document or the
transactions contemplated hereby or thereby, notice thereof and, to the
extent provided to the Senior Agent, copies of all documentation relating
thereto;
(c) promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to its security holders generally in their
capacity as such, and all reports, registration statements (other than on
Form S-8 or any successor form) or other materials (including affidavits
with respect to reports) which the Borrower or any of its Subsidiaries or
any of their officers files with the SEC or any national securities
exchange;
(d) promptly and in any event within five Business Days, notice of any
other development that could reasonably be expected to have a Material
Adverse Effect; and
(e) promptly, from time to time, such other information respecting the
condition or operations, financial or otherwise, of the Borrower or any of
its Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
16
5.2A Preservation of Existence. Each Borrower Loan Party shall do or
cause to be done all things necessary to preserve, renew and maintain in full
force and effect the legal existence of the Borrower and the Borrower
Subsidiaries.
5.3A Additional Collateral; Additional Guarantors. Each Borrower Loan
Party shall:
(a) (i) Prior to the Discharge of Senior Obligations and subject to
the Intercreditor and Subordination Agreement, with respect to any property that
is pledged to the Senior Agent as collateral under the Citigroup Credit
Facilities, substantially concurrently with such collateral being granted to the
secured parties under the Citigroup Credit Facilities (whether such collateral
is acquired after the Closing Date or otherwise) (x) execute and deliver to the
Agent such amendments or supplements to the Security Agreement, Pledge Agreement
or such other documents (including, in the case of acquired Real Property,
Mortgages and the items listed in Section 7.1(b) and (c) that are delivered to
the Senior Agent) as the Agent shall reasonably deem necessary to grant to the
Agent, for the benefit of the Secured Parties, a Lien on such property, and (y)
take all actions necessary to cause such Lien to be duly perfected to the extent
required by the applicable Security Document in accordance with all applicable
Requirements of Law, including the filing of financing statements in such
jurisdictions as may be reasonably requested by the Agent, in each case subject
to the Intercreditor and Subordination Agreement.
(ii) Following the Discharge of Senior Obligations, with respect
to acquisitions of property of the type that would have constituted Collateral
pursuant to the Citigroup Credit Facilities as in effect immediately prior to
the Discharge of Senior Obligations, within thirty (30) days after the
acquisition of such property (x) execute and deliver to the Agent such
amendments or supplements to the Security Agreement or Pledge Agreement or such
other documents as the Agent shall reasonably deem necessary to grant to the
Agent, for the benefit of the Secured Parties, a Lien on such property, and (y)
take all actions necessary to cause such Lien to be duly perfected to the extent
required by the applicable Security Document in accordance with all applicable
Requirements of Law, including the filing of financing statements in such
jurisdictions as may be reasonably requested by the Agent.
5.4A Security Interests; Further Assurances. Each Borrower Loan Party
shall promptly, subject to the Intercreditor and Subordination Agreement, upon
the reasonable request of the Agent, execute, acknowledge and deliver, or cause
the execution, acknowledgment and delivery of, and thereafter register, file or
record, or cause to be registered, filed or recorded, in an appropriate
governmental office, any document or instrument supplemental to or confirmatory
of the Security Documents or otherwise reasonably deemed by the Agent necessary
for the continued validity, perfection and priority of the Liens on the
Collateral covered thereby. Deliver or cause to be delivered to the Agent from
time to time such other documentation, consents, authorizations, approvals and
orders in form and substance reasonably satisfactory to the Agent as the Agent
shall reasonably deem necessary to perfect or maintain the Liens on the
Collateral pursuant to the Security Documents.
5.5A Information Regarding Collateral. Each Borrower Loan Party shall
furnish to the Agent prompt written notice of any change (i) in such Borrower
Loan Party's legal
17
name, (ii) in the location of any Borrower Loan Party's chief executive office
or any office or facility at which Collateral owned by it is located (including
the establishment of any such new office or facility), (iii) in any Borrower
Loan Party's corporate structure, (iv) in any Borrower Loan Party's Federal
Taxpayer Identification Number or organizational identification number or (v) in
any Borrower Loan Party's jurisdiction of organization. Holdings and the
Borrower will not, and will not permit any other Borrower Loan Party to, effect
or permit any change referred to in the preceding sentence unless (i) it shall
have given the Agent written notice not later than 10 days after any such change
and (ii) all filings have been made under the UCC or otherwise that are required
in order for the Agent to continue at all times following such change to have a
valid, legal and perfected security interests in all the Collateral. The
Borrower will, and will cause each other Borrower Loan Party to, promptly notify
the Agent if any material portion of the Collateral is damaged or destroyed.
5.6A Use of Proceeds. The Borrower covenants and agrees that the
proceeds of the Borrowings will be used in the manner set forth in the
definition of Term Transaction.
5.7A Tax Status.(a) The Borrower shall maintain its status as a
corporation for United States income tax purposes.
(b) NSULC shall maintain its status as a disregarded entity for United
States income tax purposes.
(c) WLLC shall maintain its status as a disregarded entity for United
States income tax purposes.
ARTICLE 6
NEGATIVE COVENANTS OF MID-WESTERN LOAN PARTIES
So long as any Lender shall have any Commitment hereunder or any
Obligations (other than contingent indemnification Obligations for which no
claim has been made) shall remain outstanding, each Mid-Western Loan Party shall
not:
6.1. Prepayments of Subordinated Indebtedness. Make any voluntary or
optional payment or prepayment on or redemption or acquisition for value of, any
Subordinated Indebtedness (other than any Kansas Bond Indebtedness), if
immediately after giving effect to such payment, prepayment, redemption or
acquisition for value, Mid-Western would not be in compliance on a pro forma
basis with the financial covenants set forth in Sections 6.12 and 6.13 of the
Citigroup Credit Agreement (as in effect on the Closing Date) as of the last day
of the then most recently ended Fiscal Quarter of Mid-Western.
6.2. Restricted Payments. Declare or make, directly or indirectly, any
Restricted Payment, except that:
(a) Holdings may declare and make dividend payments or other
distributions payable solely in its common stock or its other common Equity
Interests;
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(b) Holdings may purchase, redeem or otherwise acquire Equity
Interests issued by it with the proceeds received from the substantially
concurrent issue of new shares of its Equity Interests or an issue of
Subordinated Indebtedness;
(c) Holdings may purchase, redeem or otherwise acquire or retire for
value Holdings' Equity Interests from present or former officers, directors
or employees of Holdings or any of its Subsidiaries (or permitted
transferees, assigns, estates or heirs of the foregoing) upon the death,
disability or termination of employment of such officer, director or
employee; and
(d) cashless exercises of options and warrants are permitted.
6.3. Sponsor Management Fees. Pay management fees to Sponsor in excess
of $3 million (plus any amounts accrued pursuant to the following proviso) in
the aggregate in any Fiscal Year; provided that (a) such management fees shall
accrue but shall not be paid during the existence of an Event of Default and (b)
the amount of such management fees paid by the Loan Parties to Sponsor shall not
exceed $375,000 in any Fiscal Quarter during the existence of any event that
results in interest on the Unpaid Amount of any Loan becoming Deferred Interest
pursuant to the first proviso to Section 2.1(b), and the portion of such
management fees not permitted to be paid pursuant to this clause (b) shall
instead accrue; provided, further, that (i) any management fees accrued during
the existence of an Event of Default may be paid by any of the Loan Parties to
Sponsor at any time after such Event of Default ceases to exist, (ii) any
management fees accrued during the existence of an event described in clause (b)
above (other than an Adjusted Interest Expense Coverage Ratio Shortfall) may be
paid by any of the Loan Parties to Sponsor at any time after such event ceases
to exist so long as the Lenders have been paid in cash all amounts that were due
and payable to the Lenders but not paid to the Lenders as a result of such event
(together with interest at the rate specified in Section 2.1(c), if applicable)
and (iii) any management fees accrued during the existence of an Adjusted
Interest Expense Coverage Ratio Shortfall (other than an Adjusted Interest
Expense Coverage Ratio Shortfall that exists during the same period in which an
event described in clause (b) above exists, in which case clause (ii) of this
proviso shall govern when management fees accrued during such period may be
paid) may be paid by any of the Loan Parties to Sponsor at any time on or after
the last day of the first Fiscal Quarter of Mid-Western to occur after such
Adjusted Interest Expense Coverage Ratio Shortfall ceases to exist and provided
that the Borrower is then permitted under Section 2.1(b) to pay the Lenders
interest in cash on the Unpaid Amount of each Loan; and provided, even further,
that the provisions of this Section 6.3 shall not apply to the closing fee in
the amount of $5 million that will be paid to Sponsor on the Closing Date.
6.4. Anti-Layering. Permit any Mid-Western Loan Party to incur any
indebtedness that is both: (a) subordinate or junior in right of payment to the
Senior Secured Debt of such Mid-Western Loan Party; and (b) senior in right of
payment to the Obligations.
6.5. Sponsor Indebtedness. Permit any Mid-Western Loan Party to incur
any indebtedness to Sponsor unless such indebtedness is subordinate in right of
payment to the Obligations.
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ARTICLE 6-A
NEGATIVE COVENANTS OF THE BORROWER LOAN PARTIES
So long as any Lender shall have any Commitment hereunder or any
Obligations (other than contingent indemnification Obligations for which no
claim has been made) shall remain outstanding, each Borrower Loan Party shall
not:
6.1A Limitations on Activities.
(a) conduct, transact or otherwise engage in, or commit to conduct,
transact or otherwise engage in, any business or operations other than the Term
Transaction, other transactions permitted under this Section 6.1A and such other
transactions as are permitted under the Citigroup Credit Facilities;
(b) create, incur, assume or permit to exist (including by way of
guarantee) any indebtedness or Lien on any property or asset (including any
income or revenues (including accounts receivable) and including any Equity
Interests (including without limitation Equity Interests in NSULC)) now owned or
hereafter acquired by them , except (a) Liens created pursuant to the Loan
Documents, the Citigroup Credit Facilities and any other Liens permitted to be
incurred by Borrower Loan Parties under the Citigroup Credit Facilities, other
than Liens on Equity Interests in NSULC, and (b) and indebtedness incurred under
the Loan Documents, the Citigroup Credit Facilities and unsecured indebtedness
between or among the Borrower Loan Parties, including without limitation Hedging
Agreements between the Borrower Loan Parties that do not affect the ability of
the Borrower to make the payments required by this Agreement and any other
indebtedness permitted under the Citigroup Credit Facilities as in effect on the
date hereof;
(c) own, acquire, manage or otherwise operate any properties or assets
(including cash, other than cash received in connection with the Term
Transaction, investments or otherwise), other than (a) the ownership of 100% of
the Equity Interests of the Borrower Subsidiaries in the manner owned as of the
Closing Date, (b) investments with the proceeds of the Loans and loans made to
the Borrower under the Citigroup Credit Facilities by the Borrower in NSULC and
by NSULC in WLLC, (c) unsecured indebtedness and Hedging Agreements, in each
case to the extent permitted by Section 6.1A(b),(d) such transactions that are
permitted under the Citigroup Credit Facilities and (e) Investments by the
Borrower in the Borrower Subsidiaries with proceeds of equity contributions by
Sponsor in the Borrower and investments of any such proceeds in Permitted
Investments (as defined in the Citigroup Credit Facilities as in effect on the
date hereof);
(d) merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with them, or liquidate or dissolve,
except as permitted under the Citigroup Credit Facilties;
(e) sell, transfer, lease or otherwise dispose of any asset (or any
interest therein) (including the WLLC Loans) other than cash or as otherwise
permitted under the Citigroup Credit Facilities;
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(f) make any Restricted Payment (as defined in the Citigroup Credit
Facilities), other than dividends or distributions or returns of capital paid to
the Borrower or any Borrower Subsidiary or to the extent permitted under the
Citigroup Credit Facilities;
(g) sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise
engage in any other transactions with, any of its affiliates, other than the
Term Transaction, other transactions among the Borrower Loan Parties, and any
other transactions permitted under the Citigroup Credit Facilities;
(h) enter into any contract or agreement other than in connection
with, arising out of or reasonably related to the Term Transaction, the
Citigroup Credit Facilities ,the Loan Documents, Hedging Agreements and other
intercompany loan documentation permitted by Section 6.1(A)(ii) and as otherwise
permitted under the Citigroup Credit Facilities as in effect on the date hereof;
(i) amend, modify or otherwise change any Organizational Documents of
any Borrower Loan Party (except as permitted under the Citigroup Credit
Facilities) or the WLLC Loan; and
(j) waive, modify or amend any provision of the WLLC Subordination
Agreement without the prior written consent of the Agent.
ARTICLE 7
CONDITIONS PRECEDENT
7.1. Conditions Precedent to the Effectiveness of This Agreement. This
Agreement shall become effective on such date as the following conditions shall
have been satisfied:
(a) This Agreement and the other Loan Documents to be delivered on the
Closing Date shall have been executed by each party thereto.
(b) The Agent shall have received counterparts of the Security
Agreement and the Pledge Agreement signed by each Loan Party and the Agent
shall have received the following in the form provided to the Senior Agent:
(i) appropriate financing statements or comparable documents
authorized by (and executed by, to the extent applicable) the appropriate
entities in proper form for filing under the provisions of the UCC and
applicable domestic or local laws, rules or regulations in each of the
offices where such filing is necessary or appropriate, in the Agent's
reasonable discretion, to grant to the Agent a perfected Lien on such
Collateral;
(ii) UCC, judgment and tax lien search reports listing all
effective financing statements or comparable documents which name any
applicable Loan Party as debtor and which are filed in those jurisdictions
in which any Loan Party is organized,
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any of such Collateral is located and the jurisdictions in which any
applicable Loan Party's principal place of business is located in the
United States, together with copies of such existing financing statements;
(iii) evidence of the preparation for recording or filing, as
applicable, of all recordings and filings of each such Security Document,
including, without limitation, with the United States Patent and Trademark
Office and the United States Copyright Office;
(iv) evidence that all other actions reasonably necessary or, in
the reasonable opinion of the Agent, desirable to perfect the security
interest created by the Security Documents have been taken; and
(v) a completed Perfection Certificate dated the Closing Date and
signed by an executive officer or Financial Officer of Mid-Western,
together with all attachments contemplated thereby, including the results
of a search of the UCC (or equivalent) filings made with respect to the
Loan Parties in the jurisdictions contemplated by the Perfection
Certificate.
(c) Except as set forth in the Post-Closing Agreement, the Agent shall
have received the following documents and instruments to the extent
provided to the Senior Agent:
(i) Mortgages in favor of the Agent encumbering Real Estate in
which any Loan Party has granted a mortgage under the Citigroup Credit
Facilities on the Closing Date, each duly executed and acknowledged by such
Loan Party, and otherwise in form for recording in the recording office
where each such Real Estate is situated, together with such certificates,
affidavits, questionnaires or returns as shall be required in connection
with the recording or filing thereof to create a Lien under applicable law,
and such UCC-1 financing statements and other similar statements as are
provided to the Senior Agent, all of which shall be in the form provided to
the Senior Agent, and any other instruments necessary to grant a mortgage
lien under the laws of any applicable jurisdiction, which Mortgages and
financing statements and other instruments shall when recorded be effective
to create a Lien on such Real Estate;
(ii) with respect to the Real Estate that will be subject to a
Mortgage on the Closing Date, such consents, approvals, amendments,
supplements, estoppels, tenant subordination agreements or other
instruments, in form provided to the Senior Agent on the Closing Date;
(iii) with respect to each Mortgage, a policy (or commitment to
issue a policy) of title insurance insuring (or committing to insure) the
Lien of such Mortgage as a valid second mortgage lien on the real property
and fixtures described therein in the amount provided to the Senior Agent,
which policies (or commitments) shall be issued by the same title company
and include such reinsurance provisions, endorsements and exceptions to
title as are provided to the Senior Agent, with respect to each piece of
Real Estate subject to Mortgage policies or certificates of insurance as
required by the
22
Mortgage relating thereto, which policies or certificates shall comply with
the insurance requirements contained in such Mortgage;
(iv) Surveys with respect to the owned Real Estate subject to a
Mortgage on the Closing Date in form and to the extent provided to the
Senior Agent;
(v) with respect to each piece of Real Estate subject to a
Mortgage on the Closing Date, such affidavits, certificates, information
(including financial data) and instruments of indemnification (including,
without limitation, a so-called "gap" indemnification) as shall be provided
to the Senior Agent;
(vi) with respect to each piece of Real Estate subject to a
Mortgage on the Closing Date, copies of all leases or other agreements
relating to possessory interests to which any Loan Party or Subsidiary
thereof is a party that are provided to the Senior Agent;
(vii) with respect to each piece of Real Estate subject to a
Mortgage on the Closing Date, copies of any evidence provided to the Senior
Agent that (x) there has been issued and is in effect a valid and proper
certificate of occupancy or other local equivalent, if any, for the use
then being made of such Real Estate and that the Loan Parties have not
received written notices of any outstanding citation, violation or similar
notice indicating that such Real Estate contains conditions which are not
in compliance with local codes or ordinances relating to building or fire
safety or structural soundness, (y) there has not occurred any taking or
destruction of any Real Estate and (z) to the best knowledge of the Loan
Parties, are no disputes regarding boundary lines, location, encroachment
or possession of any Real Estate and no state of facts existing which could
give rise to any such claim; and
(viii) with respect to each piece of Real Estate subject to a
Mortgage on the Closing Date, a completed Federal Emergency Management
Agency Standard Flood Hazard Determination ; and
(d) The Agent shall have received a counterpart of the Onex Pledge
Agreement (LP Interests) signed by Onex Corporation and a counterpart of
the Onex Pledge Agreement (GP Interests) signed by 1648701 Ontario Inc.,
and the Agent shall have received evidence that all other actions
reasonably necessary to perfect the security interest created by the Onex
Pledge Agreements have been taken.
Execution and delivery to Mid-Western by the Agent of a counterpart of
this Agreement shall be deemed confirmation by the Agent and Lenders that (i)
all conditions precedent in this Section 7.1 have been fulfilled to the
satisfaction of the Agent and the Lenders and (ii) all documents sent to the
Agent and/or the Lenders for approval, consent or satisfaction were acceptable
to the Agent and the Lenders.
7.2. Condition Precedent to Borrowings. The obligation of the Lenders
to make each Loan shall be subject to the further condition precedent that on
and as of the date of any such extension of credit, no event has occurred and is
continuing, or would result from such extension of credit, which constitutes an
Event of Default under Section 8.1(e), (f), (g)(ii) (to the
23
extent any challenge contemplated under Section 8.1(g)(ii) has not been revoked
as of the date of such extension of credit) or (h).
ARTICLE 8
DEFAULT; REMEDIES
8.1. Events of Default. It shall constitute an event of default
("Event of Default") if any one or more of the following shall occur for any
reason:
(a) any failure by the Borrower or any other Loan Party to pay (i)
when and as required to be paid herein, any amount of principal of any Loan
or (ii) within ten (10) days after the same becomes due, any interest on
any Loan or any other amount payable hereunder or under any other Loan
Document;
(b) any representation or warranty made or deemed made by any Loan
Party in this Agreement or by any Loan Party in any of the other Loan
Documents at any time to the Agent or any Lender shall prove to be untrue
in any material respect as of the date on which made, deemed made, or
furnished;
(c) (i) any default shall occur in the observance or performance of
any of the covenants and agreements contained in Article 6 or Article 6-A
of this Agreement or (ii) any default shall occur in the observance or
performance of any of the other covenants or agreements contained in any
other Section of this Agreement or any other Loan Document and such default
shall continue for thirty (30) days or more;
(d) (i) any default shall occur with respect to any Senior Secured
Debt of any Loan Party in an outstanding principal amount which exceeds $20
million, or under any agreement or instrument under or pursuant to which
any such Senior Secured Debt may have been issued, created, assumed, or
guaranteed by any Loan Party, and such default shall continue for more than
the period of grace, if any, therein specified, if the effect thereof (with
or without the giving of notice or further lapse of time or both) is to
accelerate the maturity of any such Senior Secured Debt or (ii) any Loan
Party shall fail to pay the outstanding principal amount of any Senior
Secured Debt of such Loan Party having an outstanding principal amount at
maturity in excess $20 million within fifteen (15) days after the scheduled
maturity date of such Senior Secured Debt;
(e) any Loan Party shall (i) file a voluntary petition in bankruptcy
or file a voluntary petition or an answer or file a proposal or a notice of
intention to file a proposal or otherwise commence any action or proceeding
seeking reorganization, arrangement, consolidation or readjustment of its
debts or for any other relief under the federal Bankruptcy Code, as
amended, or under any other bankruptcy, insolvency, liquidation, winding-up
or similar act or law, state, provincial, federal or foreign, now or
hereafter existing, or consent to, approve of, or acquiesce in, any such
petition, proposal, action or proceeding; (ii) apply for or acquiesce in
the appointment of a receiver, assignee, liquidator, sequestrator,
custodian, monitor, administrator, trustee or similar officer for it or for
all or any material part of its property; (iii) make an assignment for the
benefit of
24
creditors; or (iv) be unable generally to pay its debts as they become due
or shall admit in writing its inability to pay its debts generally as they
became due;
(f) (i) an involuntary petition or proposal shall be filed or an
action or proceeding otherwise commenced seeking reorganization,
arrangement, consolidation or readjustment of the debts of any Loan Party
or for any other relief under the federal Bankruptcy Code, as amended, or
under any other bankruptcy, insolvency, liquidation, winding-up or similar
act or law, state, provincial, federal or foreign, now or hereafter
existing and such petition or proceeding shall not be dismissed or stayed
within sixty (60) days after the filing or commencement thereof or an order
of relief shall be entered with respect thereto or (ii) a receiver,
assignee, liquidator, sequestrator, custodian, monitor, administrator,
trustee or similar officer for any Loan Party or for all or any material
part of its property shall be appointed and the appointment shall not be
discharged or stayed within sixty (60) days after the commencement thereof;
(g) (i) any Loan Document shall be terminated, revoked or declared
void or invalid or unenforceable or (ii) the enforceability of any Loan
Document shall be challenged by any Loan Party;
(h) any Change of Control shall occur; or
(i) Onex Corporation shall have failed to pay when due any amounts
owed by it under the Onex Guarantee Agreement (and such default shall
continue unremedied for a period of 30 days).
8.2. Remedies. Subject to the Intercreditor and Subordination
Agreement, if an Event of Default described in Section 8.1(h) exists, the Agent
may, in its discretion, and shall, at the direction of the Majority Lenders, do
one or more of the following, at any time or times and in any order, without
notice to or demand on the Loan Parties: (A) terminate the Commitments and the
Loan Documents, (B) declare any or all Loans to be immediately due and payable
and (C) pursue its other rights and remedies under the Loan Documents and
applicable law. Subject to the Intercreditor and Subordination Agreement, upon
the occurrence of any Event of Default described in Sections 8.1(e) and (f), the
Commitments shall automatically and immediately expire, all Loans shall
automatically become immediately due and payable without notice or demand of any
kind, and the Agent may pursue its other rights and remedies under the Loan
Documents and applicable law. Except as otherwise expressly provided in this
Agreement or in any other Loan Document and subject to the Intercreditor and
Subordination Agreement, no remedies shall be available to the Agent and the
Lenders as a result of the occurrence and/or continuance of any Event of Default
described in Section 8.1(a), (b), (c), (d), (g) or (i) until such time as both
(x) a Discharge of Senior Obligations has occurred and (y) the Availability
Period has expired or terminated (such occurrences listed in clauses (x) and (y)
are referred to herein collectively as the "Senior Discharge Events"). Subject
to the Intercreditor and Subordination Agreement, following the occurrence of
the Senior Discharge Events and during the existence of an Event of Default
described in Section 8.1(a), (b), (c), (d), (g) or (i), the Agent may, in its
discretion, and shall, at the direction of the Majority Lenders, do one or more
of the following, at any time or times and in any order, without notice to or
demand on the Loan Parties: (A) terminate the Loan Documents, (B) declare any or
all Loans to be immediately due and
25
payable and (C) pursue its other rights and remedies under the Loan Documents
and applicable law.
8.3 Application of Proceeds. Subject to the terms of the Intercreditor
and Subordination Agreement, proceeds received by the Agent in respect of any
sale of, collection from or other realization upon all or any part of the
Collateral pursuant to an exercise of rights or remedies shall be applied as
follows:
(a) First, to the then outstanding Obligations owing to the Lenders
(other than the Mid-Western Lenders) in such order and manner as the Agent shall
elect,
(b) Second, to the then outstanding Obligations owing to the
Mid-Western Lenders in such order and manner and they shall elect, and
(c) Third, the balance, if any, to the Loan Parties or as a court of
competent jurisdiction may direct.
ARTICLE 9
TERM AND TERMINATION
9.1. Term and Termination. The term of this Agreement shall end on the
Stated Termination Date unless sooner terminated in accordance with the terms
hereof. Upon the effective date of termination of this Agreement for any reason
whatsoever, all Obligations (including all unpaid principal, accrued and unpaid
interest) shall become immediately due and payable, subject to the terms of the
Intercreditor and Subordination Agreement.
ARTICLE 10
AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS
10.1. Amendments and Waivers.
(a) Subject to the Intercreditor and Subordination Agreement, no
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent with respect to any departure by a Loan Party
therefrom, shall be effective unless the same shall be in writing and signed by
the Majority Lenders (or by the Agent at the written request of the Majority
Lenders) and the Loan Parties party to such Loan Document and then any such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; except that any waiver, amendment or consent
which shall do any of the following shall be in writing and signed by all the
Lenders and the Loan Parties party to such Loan Document and acknowledged by the
Agent:
(i) change this Section or any provision of this Agreement
providing for consent or other action by all Lenders (including, without
limitation, Section 3.2(c)(ii));
26
(ii) release any Guaranties of the Obligations or release all or
substantially all of the Collateral other than as permitted by Section 11.2
or the last paragraph of Article 12 or as required pursuant to the
Intercreditor and Subordination Agreement;
(iii) change the definition of "Majority Lenders";
(iv) increase the Commitment of any Lender over the amount
thereof then in effect;
(v) postpone or delay any scheduled payment of principal or
interest due to the Lenders (or any of them) hereunder;
(vi) reduce the principal of, or the rate of interest specified
herein on the Unpaid Amount of, any Loan or other amounts payable to any
Lender hereunder or under any other Loan Document; or
(vii) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the which is required for the Lenders
or any of them to take any action hereunder;
provided, however, that no amendment, waiver or consent shall, unless in writing
and signed by the Agent, affect the rights or duties of the Agent under this
Agreement or any other Loan Document and provided, further, that Schedule 1.2(a)
hereto (Commitments) may be amended from time to time by the Agent alone to
reflect assignments of Commitments in accordance herewith and any increase in
the Commitment of any Lender made in accordance herewith (including, without
limitation, in accordance with clause (iv)) and provided, even further, that
this Agreement and the other Loan Documents may be amended from time to time by
the Agent and the Borrower or Guarantors alone (i.e. without any Lender consent
or approval) to add a Subsidiary of a Loan Party as a Guarantor hereunder or as
a grantor under the Security Agreement, Pledge Agreement or other applicable
Loan Documents or in order to comply with the Intercreditor and Subordination
Agreement.
(b) Notwithstanding anything to the contrary contained herein or
in any other Loan Document, for purposes of determining whether the Lenders
or the Majority Lenders, as applicable, have consented to any waiver,
amendment, consent or other action under this Agreement or any other Loan
Document, the Mid-Western Lenders shall be disregarded.
10.2. Assignments.
(a) Prior to the termination or expiration of the Availability
Period, no Lender may assign any part of its Loans or other rights or
obligations hereunder or under any other Loan Document to any Person, other
than to an Affiliate of Boeing. On and after the termination or expiration
of the Availability Period, any Lender may assign to one or more Eligible
Assignees all, or any ratable part of all, of the Loans and the other
rights and obligations of such Lender hereunder and under the other Loan
Documents, in a minimum amount of $5,000,000 or, if less, all of the Loans
of such Lender (except such minimum shall not apply to an Affiliate of a
Lender); provided that, unless an assignor Lender has assigned all of its
Loans, no such
27
assignment shall be permitted unless, after giving effect thereto, such assignor
Lender retains a portion of the Loans in a minimum amount of $25,000,000;
provided, however, that the Loan Parties and the Agent may continue to deal
solely and directly with such Lender in connection with the interest so assigned
to an assignee until (i) written notice of such assignment, together with
payment instructions, addresses and related information with respect to the
assignee, shall have been given to the Borrower and the Agent by such Lender and
the assignee and (ii) such Lender and its assignee shall have delivered to the
Borrower and the Agent an executed assignment (an "Assignment Agreement") in a
form reasonably satisfactory to the Agent.
(b) Notwithstanding any other provision in this Agreement, any Lender
may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement and the other Loan Documents to secure
obligations of such Lender to one or more financial institutions that extend
secured financing to such Lender or any of its Affiliates; provided, that no
such pledge or assignment of a security interest shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto or to any other Loan Document.
ARTICLE 11
THE AGENT
11.1. Appointment and Authorization. Each Lender hereby designates and
appoints Boeing as its Agent under this Agreement and the other Loan Documents
and each Lender hereby irrevocably authorizes the 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. The Agent agrees to act as
such. Notwithstanding the foregoing, each Lender also acknowledges that the Lien
and security interest granted to the Agent pursuant to the Security Documents
and the exercise of any right or remedy thereunder are subject to the provisions
of the Intercreditor and Subordination Agreement.
11.2. Collateral Matters. Subject to the Intercreditor and
Subordination Agreement, the Lenders hereby irrevocably authorize the Agent to,
and upon request of the Borrower, the Agent shall, release any of its Liens upon
any Collateral (i) upon payment in full by the Borrower of all Obligations
(other than contingent indemnification Obligations for which no claim has been
made); (ii) constituting property being sold or disposed of or property of a
Subsidiary all of the Equity Interests of which are being sold or disposed of;
(iii) constituting property in which each of the Loan Parties certifies that no
Loan Party owned an interest in such property at the time the Lien was granted
or at any time thereafter; (iii) in which the Liens in favor of the Senior Agent
have been released, or (v) constituting property leased to a Loan Party under a
lease which has expired or been terminated. The Agent hereby agrees to execute
and deliver to the Borrower any and all releases and to take such other actions
as may be reasonably requested by the Borrower to evidence any such release of
its Liens.
11.3. Restrictions on Actions by Lenders. Each of the Lenders agrees
that it shall not, unless specifically requested to do so by the Agent and
subject to the Intercreditor and
28
Subordination Agreement, take or cause to be taken any action to enforce its
rights under this Agreement or against the Loan Parties, including the
commencement of any legal or equitable proceedings, to foreclose any Lien on, or
otherwise enforce any security interest in, any of the Collateral.
11.4. Payments by Agent to Lenders. All payments to be made by the
Agent to the Lenders shall be made by bank wire transfer or internal transfer of
immediately available funds to each Lender pursuant to wire transfer
instructions delivered in writing to the Agent. Concurrently with each such
payment, the Agent shall identify whether such payment (or any portion thereof)
represents principal or interest on the Loans or otherwise. Unless the Agent
receives notice from the Borrower prior to the date on which any payment is due
to the Lenders from the Borrower that the Borrower will not make such payment in
full as and when required, the Agent may assume that the Borrower has made such
payment in full to the Agent on such date in immediately available funds and the
Agent may (but shall not be so required), in reliance upon such assumption,
distribute to each applicable Lender on such due date an amount equal to the
amount then due such Lender from the Borrower. If and to the extent the Borrower
has not made such payment in full to the Agent, each applicable Lender shall
repay to the Agent on demand such amount distributed to such Lender, together
with interest at the Base Rate for each day from the date such amount is
distributed to such Lender until the date repaid.
11.5. Concerning the Collateral and the Related Loan Documents. Each
Lender authorizes and directs the Agent to enter into the other Loan Documents,
for the ratable benefit and obligation of the Agent and the Lenders. Each Lender
agrees that any action taken by the Agent or the Majority Lenders, as
applicable, in accordance with the terms of this Agreement or the other Loan
Documents, and the exercise by the Agent or the Majority Lenders, as applicable,
of their respective powers set forth therein or herein, together with such other
powers that are reasonably incidental thereto, shall be binding upon all of the
Lenders. The Lenders acknowledge that the Loans, and all interest and other
amounts hereunder constitute one debt, secured pari passu by all of the
Collateral.
ARTICLE 12
RESERVED
ARTICLE 13
MISCELLANEOUS
13.1. Capitalized Terms, Rules of Construction, Annexes, Exhibits and
Schedules. Capitalized terms used in this Agreement and not otherwise defined
herein shall have the meanings ascribed thereto in Annex A which is attached
hereto and incorporated herein; the rules of construction contained therein
shall govern the interpretation of this Agreement, and all Annexes, Exhibits and
Schedules attached hereto are incorporated herein by reference.
13.2. No Waivers; Cumulative Remedies. No failure by the Agent or any
Lender to exercise any right, remedy or option under this Agreement or any
present or future
29
supplement thereto, or in any other agreement between or among any Loan Party
and the Agent and/or any Lender, or delay by the Agent or any Lender in
exercising the same, will operate as a waiver thereof. No waiver by the Agent or
any Lender will be effective unless it is in writing, and then only to the
extent specifically stated. No waiver by the Agent or the Lenders on any
occasion shall affect or diminish the Agent's and each Lender's rights
thereafter to require strict performance by the Loan Parties of any provision of
this Agreement. The Agent and the Lenders may proceed directly to collect the
Obligations when due without any prior recourse to the Collateral. The Agent's
and each Lender's rights under this Agreement will be cumulative and not
exclusive of any other right or remedy which the Agent or any Lender may have.
13.3. Severability. The illegality or unenforceability of any
provision of this Agreement or any other Loan Document or any instrument or
agreement required hereunder shall not in any way affect or impair the legality
or enforceability of the remaining provisions of this Agreement, any other Loan
Document or any instrument or agreement required hereunder.
13.4. Governing Law; Choice of Forum; Service of Process.
(a) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES
OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS (AS
OPPOSED TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF DELAWARE OR
OF THE UNITED STATES FOR THE DISTRICT OF DELAWARE, AND BY EXECUTION AND DELIVERY
OF THIS AGREEMENT, EACH OF THE LOAN PARTIES, THE AGENT AND EACH OF THE LENDERS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE LOAN PARTIES, THE AGENT AND THE
LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. NOTWITHSTANDING THE
FOREGOING: (1) THE AGENT AND THE LENDERS SHALL HAVE THE RIGHT TO BRING ANY
ACTION OR PROCEEDING AGAINST ANY LOAN PARTY OR ITS PROPERTY IN THE COURTS OF ANY
OTHER JURISDICTION THE AGENT OR THE LENDERS DEEM NECESSARY OR APPROPRIATE IN
ORDER TO REALIZE ON THE COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS AND (2)
EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THE COURTS
DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE THOSE JURISDICTIONS.
(c) EACH LOAN PARTY HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY
REGISTERED MAIL (RETURN RECEIPT REQUESTED)
30
DIRECTED TO SUCH LOAN PARTY AT ITS ADDRESS SET FORTH IN SECTION 14.8 AND SERVICE
SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER THE SAME SHALL HAVE
BEEN SO DEPOSITED IN THE U.S. MAILS POSTAGE PREPAID. NOTHING CONTAINED HEREIN
SHALL AFFECT THE RIGHT OF THE AGENT OR THE LENDERS TO SERVE LEGAL PROCESS BY ANY
OTHER MANNER PERMITTED BY LAW.
13.5. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13.5.
13.6. Notices. Except as otherwise provided herein, 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, sent
by telecopy or electronic mail, as follows:
(i) if to the Borrower or any Guarantor, to it at 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, attention: Xxxx X. Xxxxxxxx (telecopy:
316 526 8720) (e-mail: xxxx.x.xxxxxxxx@xxxxxx.xxx) with a copy to (A) Xxxx
Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, attention: Xxxxxx
Xxxxxx, Esq. (telecopy: (000) 000-0000), (email: xxxxxxx@xxxxxxxxxxx.xxx)
and (B) Onex American Holdings II LLC, 000 Xxxxxx Xxxxxx, Xxxxxx XX 00000,
Attention: Xxxxxx X. Xxxx (telecopy: (000) 000-0000) (email:
xxxxx@xxxx.xxx); and
(ii) if to the Agent, to it at if to the Agent, to it at
Corporate Headquarters, M/C 5003-3648, 000 Xxxxx Xxxxxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, attention: Office of the Treasurer, (telecopy: 312 544
2399), (e-mail: xxxxxx.x.xxxxxx@xxxxxx.xxx) with a copy to: The Boeing
Company, Office of the General Counsel, M/C 5003-1001, 000 Xxxxx Xxxxxxxxx,
Xxxxxxx, Xxxxxxxx 00000-0000, attention: Office of the General Counsel,
(telecopy: 000 000 0000), (e-mail: xxxxxxx.xxxxxx@xxxxxx.xxx).
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or electronic mail or on the date five Business Days after dispatch by
certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 13.6 or in
accordance with the latest unrevoked direction from such party given in
accordance with this
31
Section 13.6. Each Loan Party and the Agent hereunder agrees to notify the other
party in writing promptly of any change to the notice information provided
above.
13.7. Binding Effect. The provisions of this Agreement shall be
binding upon and inure to the benefit of the respective representatives,
successors, and assigns of the parties hereto; provided, however, that no
interest herein may be assigned by any Loan Party without prior written consent
of the Agent and each Lender. The rights and benefits of the Agent and the
Lenders hereunder shall, if such Persons so agree, inure to any party acquiring
any interest in the Obligations or any part thereof.
13.8. Final Agreement. This Agreement and the other Loan Documents are
intended by each Loan Party, the Agent and the Lenders to be the final, complete
and exclusive expression of the agreement among them. This Agreement and the
other Loan Documents supersede any and all prior oral or written agreements
relating to the subject matter hereof.
13.9. Counterparts. This Agreement may be executed in any number of
counterparts, and by the Agent, each Lender and each Loan Party in separate
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same agreement; signature pages may be detached
from multiple separate counterparts and attached to a single counterpart so that
all signature pages are physically attached to the same document.
13.10. Captions. The captions contained in this Agreement are for
convenience of reference only, are without substantive meaning and should not be
construed to modify, enlarge, or restrict any provision.
13.11. Confidentiality. Each of the Agent and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates' respective partners, directors, officers, employees, agents,
advisors and representatives (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 regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process;
provided, unless specifically prohibited by applicable law or court order, the
Agent or such Lender, as applicable, shall make reasonable efforts to notify the
Borrower of any request thereof, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder or (f) to any
assignee or any prospective assignee of any of its rights or obligations under
this Agreement, provided such assignee or prospective assignee agrees to be
bound by the provisions of this Section.
"Information" means information concerning any Loan Party or any of
its direct or indirect equityholders, or any of their respective employees,
directors, or Subsidiaries, or Affiliates received by the Agent or any Lender on
a confidential basis from the Borrower or any other Person under or pursuant to
this Agreement or any other Loan Document, including without limitation
financial terms and financial and organizational information contained in any
32
documents, statements, certificates, materials or information furnished, or to
be furnished, by or on behalf of any Loan Party or any other Person on a
confidential basis in connection with this Agreement and the Loan Documents, but
does not include any such information that (i) is publicly available at the time
of disclosure or becomes publicly available other than as a result of a breach
of this Section or (ii) becomes available to the Agent or any Lender on a
nonconfidential basis from a source other than the Loan Parties or any of their
direct or indirect equityholders, or any of their respective employees,
directors, Subsidiaries or Affiliates or any of their respective agents or
representatives.
13.12. Conflicts with Other Loan Documents. Unless otherwise expressly
provided in this Agreement (or in another Loan Document by specific reference to
the applicable provision contained in this Agreement), if any provision
contained in this Agreement conflicts with any provision of any other Loan
Document, the provision contained in this Agreement shall govern and control.
13.13. Intercreditor and Subordination Agreement.
(a) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ALL LIENS AND SECURITY
INTERESTS GRANTED TO THE AGENT PURSUANT TO OR CONTEMPLATED BY THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, ALL OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE AGENT OR ANY OTHER
PARTY HEREUNDER OR THEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR
AND SUBORDINATION AGREEMENT AND THE OBLIGATIONS HEREUNDER AND THEREUNDER AND THE
LIENS AND SECURITY INTERESTS GRANTED OR CONTEMPLATED HEREBY OR THEREBY ARE
SUBORDINATED TO THE EXTENT SET FORTH IN THE INTERCREDITOR AND SUBORDINATION
AGREEMENT. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR
AND SUBORDINATION AGREEMENT AND THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, THE
TERMS OF THE INTERCREDITOR AND SUBORDINATION AGREEMENT SHALL GOVERN AND CONTROL.
(b) EACH LENDER HEREBY GRANTS TO THE AGENT ALL REQUISITE AUTHORITY TO ENTER
INTO OR OTHERWISE BECOME BOUND BY THE INTERCREDITOR AND SUBORDINATION AGREEMENT
AND TO BIND THE LENDERS THERETO BY THE AGENT'S ENTERING INTO OR OTHERWISE
BECOMING BOUND THEREBY, AND NO FURTHER CONSENT OR APPROVAL ON THE PART OF THE
LENDERS IS OR WILL BE REQUIRED IN CONNECTION WITH THE PERFORMANCE OF THE
INTERCREDITOR AND SUBORDINATION AGREEMENT.
13.14. Subordination of Obligations to all Senior Secured Debt . The
Agent and the Lenders hereby confirm that all liens and security interests
granted to the Agent pursuant to or contemplated by this Agreement or any other
Loan Document and all Obligations under this Agreement and the other Loan
Documents are subordinated to all Senior Secured Debt of the Loan Parties, and
the Agent and the Lenders hereby agree that, if requested by Mid-Western, they
will promptly enter into such subordination and intercreditor agreements with
Senior
33
Lenders not party to the Intercreditor and Subordination Agreement, on terms
substantially similar to the Intercreditor and Subordination Agreement,
confirming such subordination.
13.15. Assignment and Release of Borrower Loan Parties' Obligations.
Notwithstanding anything to the contrary contained herein or in any of the other
Loan Documents, the Borrower may at any time assign to Mid-Western, and
Mid-Western may assume from the Borrower by novation, all rights and obligations
of the Borrower under the Loan Documents pursuant to documentation reasonably
satisfactory to the Agent so long as in connection with such assignment the WLLC
Loans are or are deemed repaid and terminated in full (such assignment and
assumption of all (but not less than all) such rights and obligations, a
"Borrower Assignment"). Effective immediately upon any such Borrower Assignment,
and receipt of legal opinions reasonably satisfactory to the Agent with respect
to the validity and enforceability of such Borrower Assignment, each of the
Borrower Parties shall be released from all obligations and liabilities under
the Loan Documents and the initial investment in the Borrower Loan Parties made
by the Sponsor on the Closing Date and proceeds earned thereon from the making
of Permitted Investments (as defined in the Citigroup Credit Facilities) of such
amounts may be transferred to any Person (including Sponsor) free and clear of
any Liens in favor of the Secured Parties (as defined in the Security
Agreement). For the avoidance of doubt, all other property of the Borrower Loan
Parties, including any WLLC Spread and proceeds thereon, shall be either (i)
transferred to Mid-Western and/or the Mid-Western Loan Parties or (ii)
transferred to Onex Corporation or an affiliate thereof subject to the
continuing Lien of the Agent and shall be held in a blocked collateral account
securing the Obligations pursuant to documentation reasonably satisfactory to
the Agent, in each case upon the occurrence of the Borrower Assignment.
13.16. Costs and Expenses. Mid-Western agrees to pay (a) to the Agent
all reasonable out-of-pocket costs and expenses incurred by the Agent (including
the reasonable fees and expenses of counsel to the Agent) in respect of title
insurance and taxes, fees and other charges for recording the Mortgages, filing
financing statements and continuations, and other actions to perfect and
continue the Agent's Liens and to add Persons as guarantors, pledgors or
grantors, as applicable, in accordance with the terms of the Loan Documents, (b)
to the Agent and the Lenders all reasonable out-of-pocket expenses incurred by
the Agent and the Lenders (including the reasonable fees and expenses of counsel
to the Agent and each Lender) in connection with the enforcement or protection
of its rights in connection with this Agreement, the other Loan Documents or the
Loans, including all such reasonable out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans and (c) all
reasonable out-of-pocket costs and expenses incurred by the Agent (including the
reasonable fees and expenses of counsel to the Agent) in connection with the
termination of any Loan Document or the release of any Loan Party from its
obligations under any Loan Document, including, without limitation, filing fees
and other charges incurred by the Agent in terminating financing statements and
mortgages.
13.17. No Recourse Against Limited Partners. For the avoidance of
doubt, the Agent and each Lender hereby confirms that it has no recourse against
any of the limited partners of the Borrower with respect to any obligation
arising out of this Agreement. For the avoidance of doubt, nothing contained
herein shall limit any right of the Agent or any Lender under the
34
Onex Guarantee Agreement and the NSULC Tax Indemnity Agreement (including any
right to recourse granted thereunder).
35
IN WITNESS WHEREOF, the parties have entered into this Agreement on
the date first above written.
"LOAN PARTIES"
ONEX WIND FINANCE LP,
By: its general partner,
1648701 ONTARIO INC.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Representative
MID-WESTERN AIRCRAFT SYSTEMS, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: President
MID-WESTERN AIRCRAFT SYSTEMS HOLDINGS,
INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: President
MID-WESTERN AIRCRAFT FINANCE, INC.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer and
President
3101447 NOVA SCOTIA COMPANY
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer and
President
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
[Boeing Credit Agreement]
ONEX WIND FINANCE LLC
By: /s/ Xxxxxx Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Director
[Boeing Credit Agreement]
"AGENT"
THE BOEING COMPANY, as the Agent
By: /s/ Xxxxx Xxxxxx
------------------------------------
Title:
---------------------------------
"LENDERS"
THE BOEING COMPANY
By: /s/ X
------------------------------------
Title:
---------------------------------
[Boeing Credit Agreement]
ANNEX A
TO
CREDIT AGREEMENT
DEFINITIONS
Capitalized terms used in the Loan Documents shall have the following
respective meanings (unless otherwise defined therein), and all section
references in the following definitions shall refer to sections of the
Agreement:
"Adjusted Interest Expense Coverage Ratio Shortfall" has the meaning
specified for such term in the Intercreditor and Subordination Agreement.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, by contract, or otherwise.
"Agent" means The Boeing Company, solely in its capacity as Agent for
the Lenders.
"Agent's Liens" means the Liens in the Collateral granted to the
Agent, for the benefit of the Lenders and the Agent, pursuant to this Agreement
and the other Loan Documents.
"Agreement" means the Credit Agreement to which this Annex A is
attached, as from time to time amended, modified, restated or otherwise
modified.
"Assignment Agreement" has the meaning specified in Section 10.2(a).
"Availability Period" means the period commencing on the Closing Date
and ending on the earliest of (i) December 31, 2008, (ii) the date on which the
aggregate principal amount of the Loans made by the Lenders to the Borrower
equals $150,000,000 and (iii) the date specified in a written notice delivered
by the Borrower to the Agent stating that the Borrower will no longer request
any Borrowings on and after such specified date.
"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C.
Section 101 et seq.).
"Base Rate" means, for any day, the rate of interest in effect for
such day as publicly announced from time to time by Citicorp North America, Inc.
as its "prime rate". Any change in the prime rate announced by the Senior Agent
shall take effect at the opening of business on the day specified in the public
announcement of such change. Each Interest Rate based upon the Base Rate shall
be adjusted simultaneously with any change in the Base Rate.
"Boeing" means the The Boeing Company, a Delaware corporation.
A-1
"Boeing Lender" has the meaning specified in Section 3.4(a).
"Borrower" has the meaning specified in the introductory paragraph
hereof.
"Borrower Assignment" has the meaning specified in Section 13.15.
"Borrower Loan Parties" means, collectively, the Borrower and the
Borrower Subsidiaries.
"Borrower Subsidiaries" means each of (i) NSULC and (ii) WLLC.
"Borrowing" means a borrowing hereunder consisting of Loans made by
the Lenders to the Borrower.
"Borrowing Notice" has the meaning specified in Section 1.1(b).
"Business Day" means (a) any day that is not a Saturday, Sunday, or a
day on which banks in New York, New York are required or permitted to be closed
and (b) with respect to determinations of the LIBOR Rate, any day that is a
Business Day pursuant to clause (a) above and that is also a day on which
trading in Dollars is carried on by and between banks in the London interbank
market.
"Capital Lease Obligations" means all monetary or financial
obligations of Mid-Western and its Subsidiaries under any leasing or similar
arrangement conveying the right to use real or personal property, or a
combination thereof, which, in accordance with GAAP, would or should be
classified and accounted for as capital leases, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP and the stated maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date on
which such lease may be terminated by the lessee without payment of a penalty.
"Change of Control" means:
(a) prior to such time as there shall have been consummated an Initial
Public Offering of Holdings, the occurrence of any of the following: (i)
the Permitted Holders (collectively) cease to own, or to have the power to
vote or direct the voting of, Voting Stock of Holdings representing a
majority of the voting power of the total outstanding Voting Stock of
Holdings or (ii) the Permitted Holders cease to own Equity Interests
representing a majority of the total economic interests of the Equity
Interests of Holdings;
(b) from and after the time that there shall have been consummated an
Initial Public Offering of Holdings, the occurrence of any of the
following: (i) the Permitted Holders (collectively) shall fail to own, or
to have the power to vote or direct the voting of, Voting Stock of Holdings
representing at least 35% of the voting power of the total outstanding
Voting Stock of Holdings, (ii) any "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act), other than one or
more Permitted Holders, is or becomes the beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of
this clause such person or group shall be
A-2
deemed to have "beneficial ownership" of all securities that such person or
group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of
Voting Stock of Holdings representing voting power that is greater than the
voting power represented by the Voting Stock of Holdings beneficially
owned, directly or indirectly, by the Permitted Holders (collectively) or
(iii) during any period of two consecutive years, individuals who at the
beginning of such period constituted the board of directors of Holdings
(together with any new directors who were nominated for election by a
Permitted Holder or whose election to such board of directors or whose
nomination for election was approved by a vote of a majority of the
directors of Holdings then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute at least a
majority of the board of directors of Holdings; provided that a Change of
Control under this clause (b)(iii) shall not be deemed to have occurred if
and for so long as the Permitted Holders have the power to elect a majority
of the board of directors of Holdings;
(c) at any time, Holdings ceases to own 100% of the Equity Interests
of Mid-Western;
(d) at any time prior to a Borrower Assignment permitted by Section
13.15, (x) the Sponsors shall cease to own, directly or indirectly, 100% of
the Equity Interests of the Borrower or (y) the Borrower shall cease to
own, directly or indirectly, 100% of the Equity Interests of any of the
Borrower Subsidiaries; or
(e) at any time, a "Change of Control" (or equivalent term) has
occurred under the Citigroup Credit Facilities.
"Citigroup Credit Agreement" means the Credit Agreement, dated as of
the date hereof, among Holdings, Mid-Western, the Borrower, Citicorp North
America, Inc., as administrative agent and collateral agent and documentation
agent, Citigroup Global Markets Inc., as sole lead arranger and book runner, The
Bank of Nova Scotia and Royal Bank of Canada, as co-arrangers, and the lenders
from time to time party thereto, as amended, restated, modified, renewed,
refunded, replaced (whether upon termination or otherwise) or refinanced
(including by means of sales of debt securities to institutional investors) in
whole or in part from time to time.
"Citigroup Credit Facilities" means the secured revolving and term
loan facilities provided to the Borrower and Mid-Western on the Closing Date by
Citicorp North America, Inc. and/or one or more of its affiliates and other
banks and institutional lenders, including any credit agreement and related
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case, as amended, restated, modified, renewed,
refunded, replaced (whether upon termination or otherwise) or refinanced
(including by means of sales of debt securities to institutional investors) in
whole or in part from time to time.
"Closing Date" means June 16, 2005.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
A-3
"Collateral" means all of each Loan Party's real and personal property
and all other assets of any Person, in each case from time to time subject to
the Agent's Liens securing payment or performance of any of the Obligations.
"Commitment" means, as to any Lender, the obligation of such Lender,
if any, to make Loans in an aggregate principal not to exceed the amount set
forth under the heading "Commitment" opposite such Lender's name on Schedule
1.2(a) or in the Assignment Agreement pursuant to which such Lender became a
party hereto, as the same may be changed from time to time pursuant to the terms
hereof.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Deferred Interest" has the meaning specified in Section 2.1(b).
"Discharge of Senior Obligations" means the earliest date upon which
all of the following have occurred: (i) termination of all commitments to extend
credit under all Senior Secured Facilities, (ii) payment in full in cash of all
indebtedness, obligations and liabilities outstanding under all Senior Secured
Facilities (other than contingent indemnification obligations not then claimed
or due) and (iii) termination, cancellation or cash collateralization of all
outstanding letters of credit under all Senior Secured Facilities.
"Dollar" and "$" mean dollars in the lawful currency of the United
States.
"Eligible Assignee" means (a) a commercial bank, commercial finance
company, insurance company, investment fund or other lender that (i) has total
assets in excess of $2,000,000,000 and (ii) in the ordinary course of business
regularly invests in bank loans and similar extensions of credit, (b) any Lender
listed on the signature page of this Agreement and (c) any Affiliate of Boeing.
"Equity Interest" means, with respect to any Person, any and all
shares, interests, participations or other equivalents, including membership
interests (however designated, whether voting or nonvoting), of equity of such
Person, including, if such Person is a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of property of, such partnership, whether outstanding on the
date hereof or issued after the Closing Date, but excluding debt securities
convertible or exchangeable into such equity.
"Equity Investors" means collectively, the Permitted Holders and
officers, employees and directors of Holdings or any of its Subsidiaries that
own Equity Interests of Holdings.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with any Loan Party, is treated as a single
employer under Sections 414(b) or (c) of the Code, and for the purpose of
Section 302 of ERISA and/or Section 412, 4971, 4977, 4980D,
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4980E and/or each "applicable section" under Section 414(t)(2) of the Code,
within the meaning of Section 414(b), (c), (m) or (o) of the Code.
"ERISA Event" means (a) any "reportable event," as defined in Section
4043(c) of ERISA or the regulations issued thereunder, with respect to
a Pension Plan (other than an event for which the 30-day notice period is waived
by regulation); (b) the existence with respect to any Pension Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived, the failure to make by its due
date a required installment under Section 412(m) of the Code with respect to any
Pension Plan or the failure to make any required contribution to a Multiemployer
Plan; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Pension Plan; (d) the incurrence by any Loan Party or ERISA
Affiliate of any liability under Title IV of ERISA with respect to any Pension
Plan; (e) the receipt by any Loan Party or ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any
Pension Plan, to appoint a trustee to administer any Pension Plan, or to take
any other action with respect to a Pension Plan that could result in material
liability to a Loan Party or a Subsidiary, or the occurrence of any event or
condition which could reasonably be expected to constitute grounds under ERISA
for the termination of or the appointment of a trustee to administer, any
Pension Plan; (f) the incurrence by any Loan Party or ERISA Affiliate of any
liability with respect to the withdrawal or partial withdrawal from any Pension
Plan or Multiemployer Plan; (g) the receipt by a Loan Party or ERISA Affiliate
of any notice concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA; (h) the "substantial
cessation of operations" within the meaning of Section 4062(e) of ERISA with
respect to a Pension Plan; (i) the making of any amendment to any Pension Plan
which could result in the imposition of a Lien or the posting of a bond or other
security; or (j) the occurrence of a nonexempt prohibited transaction (within
the meaning of Section 4975 of the Code or Section 406 of ERISA) which could
result in liability to a Loan Party or any of the Subsidiaries.
"Event of Default" has the meaning specified in Section 8.1.
"Financial Officer" of any corporation, partnership or other entity
means the chief financial officer, the principal accounting officer, Treasurer
or Controller of such corporation, partnership or other entity.
"Fiscal Quarter" means any period of 13 or 14 weeks ending on the
Thursday nearest to the last day of each calendar quarter in each calendar year.
"Fiscal Year" means any period of 52 or 53 consecutive weeks ending on
the Thursday nearest to December 31 of each calendar year; references to a
Fiscal Year with a number corresponding to any calendar year (e.g., the "2005
Fiscal Year") refer to the Fiscal Year ending on or about December 31 occurring
during such calendar year.
"Foreign Subsidiary" means any direct or indirect Subsidiary of the
Borrower which is not organized under the laws of the United States, any state
thereof or the District of Columbia.
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"Funding Date" means the date on which a Borrowing occurs.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis.
"Governmental Authority" means any nation or government, any state,
locality, province or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing and any department, agency, board, commission, tribunal, committee or
instrumentality of any of the foregoing.
"Guarantee Agreement" means the Guarantee Agreement, substantially in
the form of Exhibit D, made by the Guarantors in favor of the Agent for the
benefit of the Secured Parties.
"Guarantors" means, collectively, (a) Holdings, (b) Mid-Western and
each of the other present and future Subsidiaries of Holdings that guarantees
any obligations of the Borrower under the Citigroup Credit Facilities (or,
following the Discharge of Senior Obligations, that would have been required to
guarantee any obligations of the Borrower under the Citigroup Credit Facilities
as in effect immediately prior to the Discharge of Senior Obligations) and (c)
the Borrower Subsidiaries.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement
and all other similar agreements or arrangements designed to alter the risks of
any Person arising from fluctuations in interest rate, currency values or
commodity prices.
"Holdings" means Mid-Western Aircraft Systems Holdings, Inc., a
Delaware corporation.
"Indemnified Foreign Tax" has the meaning assigned thereto in Section
3.4.
"Indemnified Taxes" has the meaning assigned thereto in Section 3.4.
"Initial Public Offering" means a primary underwritten public offering
of common stock of the Parent Guarantor.
"Intercreditor and Subordination Agreement" means, collectively, (i)
that certain Subordination and Intercreditor Agreement, dated as of the date
hereof (as amended, restated, supplemental or otherwise modified from time to
time), among Citicorp North America, Inc., as collateral agent and
administrative agent under the Citigroup Credit Facilities, and the Agent and
(ii) all other agreements required to be executed by the Agent and Lenders under
Section 13.14.
"Interest Payment Date" has the meaning specified in Section 2.1(b).
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"Interest Period" means, as to any Loan, (i) initially, the period
commencing on the Funding Date of such Loan and ending on the date three months
thereafter and (ii) thereafter, each period commencing on the day following the
last day of the immediately preceding Interest Period and ending three months
thereafter; provided, that any Interest Period that would otherwise extend
beyond the Stated Termination Date shall end on the Stated Termination Date.
"Interest Rate" means, with respect to the Unpaid Amount of any Loan
for any Interest Period, a per annum rate equal to the LIBOR Rate for such
Interest Period plus six percent (6.0%); provided, that if the Agent and the
Borrower determine that for any reason adequate and reasonable means do not
exist for determining the LIBOR Rate for any Interest Period with respect to the
Unpaid Amount of any Loan, the Interest Rate shall be a fluctuating per annum
rate equal to the Base Rate in effect from time to time plus four and
three-fourths percent (4.75%).
"IRB Lease Obligations" means Capital Lease Obligations of Mid-Western
or any of its Subsidiaries owed to the City of Wichita or the City of Tulsa
(each a "City") in connection with the leasing of property that is purchased by
such City and financed with the proceeds of an issuance of industrial revenue
bonds issued by such City to Mid-Western or such Subsidiary.
"Kansas Bond Indebtedness" means Subordinated Indebtedness in respect
of bond financings entered into for the purpose of obtaining a credit against
Kansas payroll taxes paid with respect to wages of employees of Mid-Western and
its Subsidiaries on terms and conditions consistent in all material respects
with the description of such bond financings set forth in the Term Sheet
attached hereto as Schedule 1.2(b).
"Lender" and "Lenders" have the meaning specified in the introductory
paragraph hereof.
"LIBOR Rate" means, for any Interest Period with respect to a Loan,
the rate per annum equal to the British Bankers Association LIBOR Rate ("BBA
LIBOR"), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the Agent from time to time)
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for deposits in the relevant currency (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest of any kind or nature whatsoever.
"Loan Documents" means this Agreement, the Guarantee Agreement, the
Notes, the WLLC Subordination Agreement, the Intercreditor and Subordination
Agreement, the Onex Guarantee Agreement, the NSULC Tax Indemnity Agreement, the
Remarketing Agreement, the Post-Closing Agreement, the Undertaking Agreement and
the Security Documents.
"Loan Party" means the Borrower and each Guarantor.
"Loans" has the meaning specified in Section 1.1(a).
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"Majority Lenders" means at any time Lenders whose Pro Rata Shares
aggregate more than 50%.
"Material Adverse Effect" means a materially adverse effect on (a) the
business, financial condition, affairs or results of operations of Holdings and
its Subsidiaries, taken as a whole, or the Borrower Loan Parties or (b) the
ability of any Loan Party to perform its respective obligations under the Loan
Documents, (c) the rights of or benefits available to the Lenders under any Loan
Document or (d) the validity, enforceability, perfection or priority of the
Liens granted to the Agent on the Collateral (taken as a whole) pursuant to the
Security Documents.
"Maximum Rate" has the meaning specified in Section 2.2.
"Mid-Western" means Mid-Western Aircraft Systems, Inc., a Delaware
corporation.
"Mid-Western Lenders" means, collectively, Holdings or any affiliate
of Holdings that becomes a Lender pursuant to the Remarketing Agreement, in each
case solely in its capacity as a Lender.
"Mid-Western Loan Parties" means, collectively, Holdings, Mid-Western
and the direct and indirect Subsidiaries of Holdings that are Guarantors.
"Mortgages" means and includes any and all of the mortgages,
hypothecations, charges/mortgages of land, deeds of trust, deeds to secure debt,
assignments and other instruments executed and delivered by any Loan Party to or
for the benefit of the Agent by which the Agent, on behalf of the Lenders,
acquires a Lien on Real Estate or a collateral assignment of any Loan Party's
interest under leases of Real Estate, and all amendments, modifications and
supplements thereto.
"Multiemployer Plan" means a multiemployer plan within the meaning of
Section 4001(a)(3) of ERISA (i) to which any Loan Party or ERISA Affiliate is
then making or accruing an obligation to make contributions, (ii) to which any
Loan Party or ERISA Affiliate has within the preceding six plan years made
contributions, including any Person which ceased to be an ERISA Affiliate during
such six year period, or (iii) with respect to which Loan Party or any
Subsidiary could incur liability.
"Note" has the meaning set forth in Section 1.1(c).
"NSULC" has the meaning set forth in the definition of "Term
Transaction."
"NSULC Tax Indemnity Agreement" means the NSULC Tax Indemnity
Agreement, substantially in the form of Exhibit E, between Onex Corporation and
NSULC (as the same may be amended, supplemented or amended and restated from
time to time).
"Obligations" means all present and future loans, advances,
liabilities, obligations, covenants, duties, and debts owing by the Loan Parties
to the Agent and/or any Lender, arising under or pursuant to this Agreement or
any of the other Loan Documents, whether or not evidenced by any note, or other
instrument or document, whether arising from
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loan, guaranty or otherwise, whether direct or indirect, absolute or contingent,
due or to become due, primary or secondary, as principal or guarantor, and
including all principal, interest and any other sums chargeable to any of the
Loan Parties hereunder or under any of the other Loan Documents.
"Onex Guarantee Agreement" means the Guarantee Agreement,
substantially in the form of Exhibit F, among Onex Corporation, the Lenders and
the Agent.
"Onex Pledge Agreement (GP Interests)" means the Canadian Pledge
Agreement, substantially in the form of Exhibit G-1, among 1648701 Ontario Inc.
and the Agent.
"Onex Pledge Agreement (LP Interests)" means the Onex Pledge
Agreement, substantially in the form of Exhibit G-2, among Onex Corporation, the
Agent and Citicorp North America, Inc., as collateral agent under the Citigroup
Credit Agreement.
"Onex Pledge Agreements" means, collectively, the Onex Pledge
Agreement (GP Interests) and the Onex Pledge Agreement (LP Interests).
"Organizational Document" means (i) relative to each Person that is a
corporation, its charter and its by-laws (or similar documents), (ii) relative
to each Person that is a limited liability company, its certificate of formation
and its operating agreement (or similar documents), (iii) relative to each
Person that is a limited partnership, its certificate of formation and its
limited partnership agreement (or similar documents), (iv) relative to each
Person that is a general partnership, its partnership agreement (or similar
document) and (v) relative to any Person that is any other type of entity, such
documents as shall be comparable to the foregoing.
"Other Taxes" has the meaning assigned thereto in Section 3.4.
"Payment Block Event" means a Blockage Event (as defined the
Intercreditor and Subordination Agreement).
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"Pension Plan" means a "pension plan," as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
Multiemployer Plan) and to which any Loan Party or any ERISA Affiliate may have
liability, including any liability by reason of having been a substantial
employer within the meaning of Section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a contributing sponsor
under Section 4069 of ERISA.
"Perfection Certificate" means a certificate in the form of Annex 2 to
the Security Agreement or such other form that is provided to the Senior Agent.
"Permitted Holders" means Onex Partners L.P., Onex Corporation and
their respective affiliates that are Equity Investors as of the Closing Date and
are identified as such on Schedule 1.01(d).
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"Person" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, unincorporated organization,
association, corporation, Governmental Authority or any other entity.
"Pledge Agreement" means the Pledge Agreement, substantially in the
form of Exhibit H, among the Loan Parties and the Agent for the benefit of the
Secured Parties (as the same may be amended, supplemented or amended and
restated from time to time).
"Post-Closing Agreement" means the Post-Closing Agreement, dated as of
the date hereof, between Mid-Western and the Agent.
"Prepayment Notice" has the meaning specified in Section 3.2(c)(ii).
"Pro Rata Share" means, with respect to a Lender at any time, a
fraction (expressed as a percentage), the numerator of which is the amount of
such Lender's Commitment at such time and the denominator of which is the
amounts of all of the Lenders' Commitments at such time (or if no Commitments
are outstanding at such time, a fraction (expressed as a percentage), the
numerator of which is the amount of the Loans owed to such Lender at such time
and the denominator of which is the aggregate amount of the Loans owed to all
Lenders at such time).
"Real Estate" means all of each Loan Party's now or hereafter owned or
leased estates in real property, including, without limitation, all fees,
leaseholds and future interests, together with all of each Loan Party's now or
hereafter owned or leased interests in the improvements thereon, the fixtures
attached thereto and the easements appurtenant thereto.
"Remarketing Agreement" means the Remarketing Agreement, substantially
in the form of Exhibit I, among Holdings, the Lenders and the Agent.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or
commissioner or of a Governmental Authority, in each case applicable to or
binding upon the Person or any of its property or to which the Person or any of
its property is subject.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any Equity Interest of
Holdings, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any such
Equity Interest, or on account of any return of capital to Holdings'
stockholders.
"Section 3.4 Certificate" has the meaning assigned to such term in
Section 3.4.
"Secured Parties" means, collectively, the Agent and the Lenders.
"Security Agreement" means the Security Agreement, substantially in
the form of Exhibit J, among the Loan Parties and the Agent for the benefit of
the Secured Parties (as the same may be amended, supplemented or amended and
restated from time to time).
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"Security Documents" means the Security Agreement, the Pledge
Agreement, the Perfection Certificate, any cash management agreements (as
defined in the Security Agreement), the Mortgages, the Onex Pledge Agreements
and each other security agreement or other instrument or document executed and
delivered pursuant to Section 5.4 or 5.5 to secure any of the Obligations.
"Senior Agent" means Citicorp North America, Inc., in its capacity as
administrative agent and/or collateral agent under the Citigroup Credit
Facilities, together with its successors and assigns.
"Senior Discharge Events" has the meaning specified in Section 8.2.
"Senior Secured Debt" means all obligations to the Senior Lenders in
connection with the Senior Secured Facilities (including post-petition interest
whether or not an allowed claim), provided that no indebtedness shall constitute
Senior Secured Debt to the extent that its incurrence would cause the aggregate
principal amount of the Senior Secured Debt at the time of incurrence to exceed
the Senior Secured Debt Cap. For the avoidance of doubt, any indebtedness that
constitutes Senior Secured Debt at the time incurred shall at all times
thereafter constitute Senior Secured Debt.
"Senior Secured Debt Cap" means $1,075,000,000; provided, that for
purposes of calculating the Senior Secured Debt Cap, Senior Secured Debt shall
not include (i) obligations incurred by Mid-Western or any other Loan Party as a
result of a 787 Discontinuance, (ii) any Kansas Bond Indebtedness, (iii) any IRB
Lease Obligations and (iv) and obligations under Hedging Agreements.
"Senior Secured Facilities" means one or more debt facilities or
commercial paper facilities (including without limitation the Citigroup Credit
Facilities) or other debt securities, in each case, secured and with banks,
other institutional lenders or institutional investors providing for revolving
credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables) or letters of credit, in each case, as
amended, restated, modified, renewed, refunded, replaced or refinanced
(including by means of sales of debt securities to institutional investors) in
whole or in part from time to time; provided, that Senior Secured Facilities
shall not include the debt facilities provided under the Loan Documents.
"Senior Lenders" means the lenders from time to time party to the
Senior Secured Facilities.
"787 Agreement" means the 787 GTA and the 787 SPB.
"787 Discontinuance" means 90 days after the discontinuance of the 787
Program such that less than 500 shipsets will be delivered to the Seller
pursuant to such program.
"787 GTA" means the General Terms Agreement, BCA-65520-0032, dated as
of the date hereof, between Mid-Western and Boeing, relating to the 787 Program.
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"787 Program" means the 787 Program within the meaning of the 787
Agreement.
"787 SBP" means the Special Business Provisions, BCA-MS-65530-0019,
dated as of the date hereof, between Mid-Western and Boeing, relating to the 787
Program.
"Sponsor" means Onex Partners LP, Onex Corporation and their
respective affiliates.
"Stated Termination Date" means June 16, 2013.
"Subordinated Indebtedness" means indebtedness of any Loan Party that
is by its terms subordinated in right of payment to the Obligations of such
Loan.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which more than fifty percent (50%) of the voting stock or other equity
interests (in the case of Persons other than corporations), is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refer to a
Subsidiary of Holdings.
"Tax Benefit" has the meaning assigned to such term in Section 3.4.
"Taxes" has the meaning assigned to such term in Section 3.4.
"Termination Date" means the earliest to occur of (i) the Stated
Termination Date, (ii) the date this Agreement is terminated either by the
Borrower pursuant to Section 3.1 or by the Majority Lenders pursuant to Section
8.2, and (iii) the date this Agreement is otherwise terminated for any reason
whatsoever pursuant to the terms of this Agreement.
"Term Transaction" means the Borrowings by the Borrower of the Loans
from time to time under this Agreement, all the proceeds of which will be
invested substantially concurrently with such Borrowings in either (i) Equity
Interests of or loans to 3101447 Nova Scotia Company, a Nova Scotia unlimited
liability company ("NSULC"), with all the proceeds of such investment being
invested by NSULC in Equity Interests of or loans to Onex Wind Finance LLC, a
Wyoming limited liability company ("WLLC") wholly owned by NSULC or (ii) Equity
Interests of or loans to WLLC that substantially concurrently with the
applicable Borrowing are contributed to NSULC for Equity Interests of or loans
to NSULC. Upon each Borrowing under this Agreement, WLLC will lend to
Mid-Western (each a "WLLC Loan") pursuant to the WLLC Delayed-Draw Term Loan
Credit Agreement dated as of the date hereof between Mid-Western and WLLC (the
"WLLC Delayed-Draw Term Loan Agreement") the entire amount invested in it by
NSULC or the Borrower with respect to such Borrowing on economic terms and
conditions identical to those applicable to the Loan (except that the rate of
interest payable thereon will exceed (but by no more than 0.10% per annum) the
rate of interest payable on the Unpaid Amount of the Loans). The obligations of
Mid-Western in respect of each WLLC Loan shall be subordinated pursuant to the
WLLC Subordination Agreement to the obligations of Mid-Western in respect of the
Obligations pursuant to the WLLC Subordination Agreement and no payment will be
made by Mid-Western in respect of such loans from WLLC
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unless, substantially contemporaneously therewith, a payment in an equal amount
is made by the Borrower in respect of the Loans and such payment is permitted
under the WLLC Subordination Agreement, provided that, so long as no Default or
Event of Default exists, the payment of interest to WLLC may be at a rate of
interest that exceeds (but by no more than 0.10% per annum) the rate of interest
payable on the Unpaid Amount of the Loans, and provided further that during the
continuance of any Default or Event of Default such additional 0.10% per annum
interest may continue to accrue and may be paid to WLLC when the condition
resulting in the prohibition on payment thereof no longer exists and such
payment is permitted to be made by the Borrower and Mid-Western under the WLLC
Subordination Agreement. The additional 0.10% per annum interest payable on any
WLLC Loan is referred to herein as the "WLLC Spread."
"Transferee" has the meaning assigned to such term in Section 2.16.
"UCC" means the Uniform Commercial Code, as in effect from time to
time, of the State of New York or of any other state the laws of which are
required as a result thereof to be applied in connection with the issue of
perfection of security interests, provided, that to the extent that the UCC is
used to define any term herein or in any other documents and such term is
defined differently in different Articles or Divisions of the UCC, the
definition of such term contained in Article or Division 9 shall govern.
"Undertaking Agreement" means the Agreement, dated as of the date
hereof, among the Lenders, the Agent and the Borrower regarding undertakings
required by the parties thereto to incorporate certain mandatory prepayment and
offer to prepay provisions following a Discharge of Senior Obligations, as such
agreement may be amended, restated, supplemented or otherwise modified from time
to time.
"Unpaid Amount" means with respect to any Loan at any time, the sum of
(x) the outstanding principal amount of such Loan at such time plus (y) the
aggregate outstanding amount of Deferred Interest, if any, on such Loan at such
time.
"Welfare Plan" means a "welfare plan," as such term is defined in
Section 3(1) of ERISA, that is maintained or contributed to by a Loan Party or
any Subsidiary or with respect to which a Loan Party or any Subsidiary could
incur liability.
"WLLC" has the meaning set forth in the definition of "Term
Transaction."
"WLLC Loan" has the meaning assigned to such term in the definition of
"Term Transaction".
"WLLC Spread" has the meaning assigned to such term in the definition
of "Term Transaction."
"WLLC Subordination Agreement" means the WLLC Subordination Agreement,
to be entered into among the Borrower and each Borrower Subsidiary, Mid-Western,
the Agent and Citicorp North America, Inc., as administrative agent under the
Citigroup Credit Facilities, as amended, restated, supplemented or otherwise
modified from time to time, substantially in the form of Exhibit K.
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"WLLC Delayed-Draw Term Loan Agreement" has the meaning set forth in
the definition of "Term Transaction."
Accounting Terms. Any accounting term used in this Agreement shall
have, unless otherwise specifically provided herein, the meaning customarily
given in accordance with GAAP, and all financial computations in this Agreement
shall be computed, unless otherwise specifically provided therein, in accordance
with GAAP.
Interpretive Provisions. (a) The meanings of defined terms are equally
applicable to the singular and plural forms of the defined terms.
(b) The words "hereof," "herein," "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and Subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including," the words
"to" and "until" each mean "to but excluding" and the word "through" means "to
and including."
(iv) The word "or" is not exclusive.
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement and the other Loan
Documents are for convenience of reference only and shall not affect the
interpretation of this Agreement.
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NOTE
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ALL LIENS AND SECURITY
INTERESTS GRANTED TO THE AGENT PURSUANT TO OR CONTEMPLATED BY THIS NOTE OR ANY
OTHER LOAN DOCUMENT, ALL OBLIGATIONS UNDER THIS NOTE AND THE OTHER LOAN
DOCUMENTS AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE AGENT OR ANY OTHER
PARTY HEREUNDER OR THEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR
AND SUBORDINATION AGREEMENT AND THE OBLIGATIONS HEREUNDER AND THEREUNDER AND THE
LIENS AND SECURITY INTERESTS GRANTED OR CONTEMPLATED HEREBY OR THEREBY ARE
SUBORDINATED TO THE EXTENT SET FORTH IN THE INTERCREDITOR AND SUBORDINATION
AGREEMENT. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR
AND SUBORDINATION AGREEMENT AND THIS NOTE OR ANY OTHER LOAN DOCUMENT, THE TERMS
OF THE INTERCREDITOR AND SUBORDINATION AGREEMENT SHALL GOVERN AND CONTROL.
FOR VALUE RECEIVED, the undersigned (the "Borrower") hereby promises to pay to
[__________] (the "Lender"), in accordance with the provisions of the Credit
Agreement (as hereinafter defined), the Unpaid Amount of each Loan from time to
time made by the Lender to the Borrower under that certain Credit Agreement,
dated as of June 16, 2005 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Credit Agreement," the
terms defined therein being used herein as therein defined), among Onex Wind
Finance LP, as Borrower, the Guarantors party thereto, the Lenders from time to
time party thereto, and The Boeing Company, as Agent.
The Borrower promises to pay interest on the Unpaid Amount of each Loan made by
the Lender to the Borrower from the date of such Loan until such Unpaid Amount
is paid in full, at such interest rates and at such times as provided in the
Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement, is entitled
to the benefits thereof and may be prepaid in whole or in part subject to the
terms and conditions provided therein and is secured by the Collateral. Loans
made by the Lender shall be evidenced by one or more loan accounts or records
maintained by the Lender in the ordinary course of business. The Lender may also
attach schedules to this Note and endorse thereon the date, amount and maturity
of its Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
non-payment of this Note.
The Borrower hereby agrees to pay the Lender all reasonable out-of-pocket
expenses incurred by the Lender (including the reasonable fees and expenses of
counsel to the Lender) in connection with the enforcement or protection of its
rights in connection with this Note, the Credit
Agreement, the other Loan Documents or the Loans made by the Lender, including
all such reasonable out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of the Loans made by the Lender.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
ONEX WIND FINANCE LP
By: Its general partner, 1648701 Ontario Inc.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Representative
LOANS AND PAYMENTS WITH
RESPECT THERETO
AMOUNT OF OUTSTANDING
END OF PRINCIPAL OR PRINCIPAL
AMOUNT INTEREST INTEREST PAID BALANCE NOTATION
DATE OF LOAN MADE PERIOD THIS DATE THIS DATE MADE BY
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