EXHIBIT 10.28
EXECUTION COPY
US$36,000,000
CREDIT AGREEMENT
DATED AS OF JULY 29, 0000
XXXXX
XXXXXXXXX XXXXXXXX XXXXX XXXXXXX INC.
AS BORROWER
AND
THE LENDERS NAMED HEREIN
AS LENDERS
WESTDEUTSCHE LANDESBANK GIROZENTRALE
AS ADMINISTRATIVE AGENT
AND
CITIBANK, N.A.
AS COLLATERAL AGENT
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS....................................................................... 1
1.01 Certain Defined Terms.......................................................................... 1
1.02 Computation of Time Periods.................................................................... 18
1.03 Accounting Terms............................................................................... 18
1.04 Interpretation................................................................................. 18
ARTICLE II AMOUNT AND TERMS OF THE ADVANCES...................................................................... 19
2.01 The Advances................................................................................... 19
2.02 Making the Advances............................................................................ 19
2.03 Termination or Reduction of the Commitments.................................................... 20
2.04 Repayment...................................................................................... 20
2.05 Interest....................................................................................... 20
2.06 Interest Rate Determination.................................................................... 21
2.07 Optional Conversion of Advances................................................................ 22
2.08 Optional and Mandatory Prepayments............................................................. 22
2.09 Increased Costs................................................................................ 23
2.10 Illegality..................................................................................... 24
2.11 Payments and Computations...................................................................... 25
2.12 Taxes.......................................................................................... 26
2.13 Sharing of Payments, Etc....................................................................... 28
2.14 Use of Proceeds................................................................................ 28
2.15 Fees........................................................................................... 29
ARTICLE III CONDITIONS TO MAKING ADVANCES........................................................................ 29
3.01 Conditions Precedent to the Making of the Advances............................................. 29
ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................................ 34
4.01 Representations and Warranties of the Borrower................................................. 34
ARTICLE V COVENANTS OF THE BORROWER.............................................................................. 39
5.01 Affirmative Covenants.......................................................................... 39
5.02 Negative Covenants............................................................................. 43
ARTICLE VI EVENTS OF DEFAULT..................................................................................... 48
6.01 Events of Default.............................................................................. 48
ARTICLE VII THE AGENT............................................................................................ 51
7.01 Authorization and Action....................................................................... 51
7.02 Agents' Reliance, Etc.......................................................................... 51
7.03 WestLB and Affiliates.......................................................................... 52
7.04 Lender Credit Decision......................................................................... 52
7.05 Indemnification................................................................................ 52
7.06 Successor Agents............................................................................... 53
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ARTICLE VIII MISCELLANEOUS....................................................................................... 53
8.01 Amendments, Etc................................................................................ 53
8.02 Notices, Etc................................................................................... 54
8.03 No Waiver; Remedies............................................................................ 54
8.04 Costs and Expenses............................................................................. 55
8.05 Right of Set-off............................................................................... 56
8.06 Binding Effect................................................................................. 56
8.07 Assignments and Participations................................................................. 57
8.08 Confidentiality................................................................................ 59
8.09 Governing Law.................................................................................. 59
8.10 Execution in Counterparts...................................................................... 59
8.11 Jurisdiction, Etc.............................................................................. 59
8.12 Waiver of Jury Trial........................................................................... 61
8.13 Non-Recourse................................................................................... 61
8.14 Capacity of Trustees........................................................................... 61
EXHIBIT A PROMISSORY NOTE
EXHIBIT B NOTICE OF ADVANCE
EXHIBIT C ASSIGNMENT AND ACCEPTANCE
SCHEDULE 1
EXHIBIT D FORM OF SUBORDINATED LOAN AGREEMENT
EXHIBIT E FORM OF SUBORDINATED AGREEMENT
EXHIBIT F FORM OF PLEDGE AGREEMENT
EXHIBIT G FORM OF SECURITY AGREEMENT
SCHEDULE I APPLICABLE LENDING OFFICES
SCHEDULE 1.01(a) FBO CONTRACTS
SCHEDULE 1.01(b) Management Contracts to be provided
SCHEDULE 1.01(c) Material Contracts
SCHEDULE 1.01(d) Material Contracts Allocated Values
SCHEDULE 3.01(e)(iv)
SCHEDULE 4.01(c) Authorizations and Consents
SCHEDULE 4.01(h)(i) Collateral
SCHEDULE 4.01(h)(ii) Aviation Assets Not Included in Collateral
SCHEDULE 4.01(n) Environmental Compliance
SCHEDULE 4.01(o) Outstanding Debt or material obligations
SCHEDULE 4.01(q) Location of Borrower
SCHEDULE 4.01(r) Aviation Assets
SCHEDULE 4.01(t) Government Assets
SCHEDULE 5.01(r) Consents by the Airport Authorities
SCHEDULE 5.02(c) Liens Existing on Initial Closing
CREDIT AGREEMENT
Dated as of July 29, 0000
XXXXXXXXX XXXXXXXX XXXXX XXXXXXX INC., a Delaware corporation (the
"BORROWER"), the banks, financial institutions and other institutional lenders
(the "INITIAL LENDERS") listed on the signature pages hereof, WESTDEUTSCHE
LANDESBANK GIROZENTRALE ("WESTLB" ), as Administrative Agent (the
"ADMINISTRATIVE AGENT"), and CITIBANK, N.A. ("CITIBANK"), not in its individual
capacity, but solely as Collateral Agent (the "COLLATERAL AGENT") for the
Secured Parties (as hereinafter defined), agree as follows:
PRELIMINARY STATEMENTS
(1) Borrower was organized by the Equity Investors (as hereinafter
defined) to purchase the aviation assets (the "AVIATION ASSETS") of American
Port Services Inc. ("AMPORTS") through one or more of Borrower's Subsidiaries
(the "PURCHASER SUBSIDIARIES").
(2) Borrower has requested that the Lenders lend to it
US$36,000,000 (the "SENIOR DEBT") to purchase the Aviation Assets through the
Purchaser Subsidiaries and Borrower shall contribute the proceeds of the Advance
(as hereinafter defined) to the Purchaser Subsidiaries to enable the Purchaser
Subsidiaries to acquire the Aviation Assets.
(3) Such contribution of the proceeds of the Advances to the
Purchaser Subsidiaries shall represent (i) a capital contribution, (ii) a loan,
or (iii) a combination of (i) and (ii) to the Purchaser Subsidiaries.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ABPH" has the meaning specified in the Purchase Agreement.
"ADMINISTRATIVE AGENT" has the meaning specified in the introductory
paragraph hereto.
"ADMINISTRATIVE AGENT FEE AGREEMENT" means the letter agreement dated
as of the date hereof between the Borrower and the Administrative Agent relating
to certain fees payable in connection with the transactions contemplated by the
Loan Documents.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained by the Administrative Agent at XX Xxxxxx Xxxxx,
New York with its office at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
ABA No. 000-000-000, Account of: Westdeutsche Landesbank Girozentrale, New York
Branch, Account No. 0000-00-0000, Attention: Xxxxxxx Xxxx.
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"ADVANCES" means an advance by a Lender to the Borrower pursuant to
Article II and refers to a Base Rate Advance or a Eurodollar Rate Advance (each
of which shall be a "Type" of Advance).
"AFFILIATE" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 10% or more of the Voting Stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"AGENTS" means the Administrative Agent and the Collateral Agent.
"AIRPORTS" shall have the meaning set forth in the Purchase Agreement.
"AIRPORT CONSENTS" shall have the meaning set forth in the Purchase
Agreement.
"ALLOCABLE PERCENTAGES" shall have the meaning set forth in the
Purchase Agreement.
"AMPORTS" shall have the meaning set forth in Paragraph (1) of the
Preliminary Statements.
"AMPORTS AVIATION GROUP" shall have the meaning set forth in the
Purchase Agreement.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
"APPLICABLE MARGIN" means, (i) for the period from the date of this
Agreement until the first (1st) anniversary of the date of the Advances (the
"Margin Adjustment Date"), an amount equal to 1.875%; for the period from the
day immediately following the Margin Adjustment Date through the third (3rd)
anniversary of the date hereof, an amount equal to 1.875% less the Margin
Adjustment Amount and (ii) for the period from the day immediately following the
third (3rd) anniversary hereof through and including the date on which all
amounts owing hereunder are paid in full, an amount equal to 2.25% less the
Margin Adjustment Amount.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee and accepted by the Administrative
Agent, in substantially the form of Exhibit C hereto.
"AVIATION ASSETS" shall have the meaning set forth in Paragraph (1) of
the Preliminary Statements.
"BASE RATE" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the higher of:
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(a) the rate of interest announced publicly by WestLB in
New York, New York, from time to time, as WestLB's prime rate; and
(b) 1/2 of one percent per annum above the Federal Funds
Rate.
"BASE RATE ADVANCE" means an Advance to the extent that it bears
interest as provided in Section 2.05(a)(i).
"BENEFIT PLAN" means any employee benefit plan (as defined in Section
3(3) of ERISA) or other employee benefit plan, arrangement or program (whether
or not subject to ERISA) which is maintained, sponsored, contributed to (or
required to be contributed to) by the Borrower or any ERISA Affiliate, other
than any such plan, arrangement or program that is not subject to the laws of
the United States.
"BORROWER" has the meaning specified in the introductory paragraph
hereof.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable Business
Day relates to a Eurodollar Rate Advance, on which dealings are carried on in
the London interbank market.
"CAPITAL EXPENDITURES" means all expenditures made, directly or
indirectly, by any Person for equipment, fixed assets, real property or
improvements or for replacements or substitutions therefor or additions thereto
that have been, or should be, in accordance with GAAP, reflected as additions to
property, plant or equipment on a balance sheet of such Person.
"CASH EQUIVALENTS" means any of the following, to the extent owned by
the Borrower or any of its Subsidiaries free and clear of all Liens other than
Liens created under the Collateral Documents and having a maturity of not
greater than 360 days from the date of acquisition thereof: (a) readily
marketable direct obligations of the Government of the United States or any
agency or instrumentality thereof or obligations unconditionally guaranteed by
the full faith and credit of the Government of the United States, (b) insured
certificates of deposit of or time deposits with any commercial bank that is a
Lender or a member of the Federal Reserve System, issues (or the parent of which
issues) commercial paper rated as described in clause (c), is organized under
the laws of the United States or any State thereof and has combined capital and
surplus of at least $1 billion or (c) commercial paper in an aggregate amount of
no more than US$5,000,000 per issuer outstanding at any time, issued by any
corporation organized under the laws of any State of the United States and rated
at least "Prime-l" (or the then equivalent grade) by Xxxxx'x Investors Service,
Inc. or "A-1" (or the then equivalent grade) by Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc., or (d) money market
funds which invest exclusively in direct obligations of the Government of the
United States.
"CITIBANK" has the meaning specified in the introductory paragraph
hereof.
"COLLATERAL" means collectively, the Pledged Collateral, the Security
Agreement Collateral and any other collateral covered by or described under any
of the Collateral Documents.
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"COLLATERAL AGENT" has the meaning specified in the introductory
paragraph hereto.
"COLLATERAL AGENT FEE AGREEMENT" means the letter agreement dated as of
the date hereof between the Borrower and the Collateral Agent relating to
certain fees payable in connection with the transactions contemplated by the
Loan Documents.
"COLLATERAL DOCUMENTS" means the Security Agreement, the Pledge
Agreement and any other agreement, document, instrument and writing executed
from time to time which creates or purports to create a Lien in favor of the
Collateral Agent for the benefit of the Secured Parties.
"COMMITMENT" has the meaning specified in Section 2.01.
"CONFIDENTIAL INFORMATION" means the Loan Documents and information
that the Borrower or any of its Affiliates furnishes to the Administrative Agent
or any Lender which the Borrower designates in writing as confidential, but does
not include any such information that is or becomes generally available to the
public or that is or becomes available to the Administrative Agent or such
Lender from a source other than the Borrower or any of its Affiliates provided
same is not subject to a confidentiality agreement.
"CONSOLIDATED" refers to the consolidation of accounts in accordance
with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, all interest
expense (whether paid or accrued) paid or payable on the Advances for such
period, determined on a Consolidated basis and in accordance with GAAP for such
period, including, without limitation, (A) interest expense paid or payable
during such period resulting from Advances and (B) all fees paid pursuant to
Section 2.15 and (C) the net payment, if any, payable in connection with Hedge
Agreements less the net credit, if any, received in connection with Hedge
Agreements.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the net income (or net loss) of such Person and its Subsidiaries for
such period, determined on a Consolidated basis and in accordance with GAAP for
such period.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.06 or
2.07.
"CORE ASSETS" shall have the meaning specified in the Purchase
Agreement.
"DEBT" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than trade payables or
other similar indebtedness incurred in the ordinary course of such Person's
business not overdue by more than 90 days or being contested in good faith), (c)
all obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all obligations of such Person created or arising under
any conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) all obligations of such Person as
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lessee under leases that have been or should be, in accordance with GAAP,
recorded as capital leases, (f) all obligations, contingent or otherwise, of
such Person in respect of acceptances, letters of credit or similar extensions
of credit, (g) all obligations of such Person in respect of Hedge Agreements,
(h) all Debt of others referred to in clauses (a) through (g) above or clause
(i) below guaranteed by such Person, or in effect guaranteed by such Person
through an agreement (1) to pay or purchase such Debt or to advance or supply
funds for the payment or purchase of such Debt or (2) to make a loan to or
invest equity in the debtor to permit the debtor to pay such Debt and (i) all
Debt referred to in clauses (a) through (h) above secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Debt.
"DEFAULT" means any Event of Default or any event that would constitute
an Event of Default but for the requirement that notice be given or time elapse
or both.
"DIRECTION LETTER" has the meaning specified in the Escrow Agreement.
"DOLLARS" and "$" means lawful currency of the United States of
America.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the office
of such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender may from
time to time specify to the Administrative Agent and the Borrower.
"EBITDA" means, for any period, (a) the Consolidated Net Income of
Borrower and its Subsidiaries for such period plus (b) the sum of each of the
following expenses that have been deducted from the determination of the
Consolidated Net Income of Borrower and its Subsidiaries for such period: (i)
Consolidated Interest Expense for such period, (ii) all income tax expense
(whether federal, state, local, foreign or otherwise) of Borrower and its
Subsidiaries for such period, (iii) all depreciation expense of Borrower and its
Subsidiaries for such period, (iv) all amortization expense of Borrower and its
Subsidiaries for such period, and (v) all extraordinary losses deducted in the
determination of the Consolidated Net Income of Borrower and its Subsidiaries
for such period less all extraordinary gains added in the determination of the
Consolidated Net Income of Borrower and its Subsidiaries for such period, in
each case determined on a Consolidated basis and in accordance with GAAP for
such period.
"EFFECTIVE DATE" means the date this Agreement is duly executed and
delivered by the parties hereto.
"ELIGIBLE ASSIGNEE" means (i) a Lender; (ii) an Affiliate of a Lender;
(iii) a commercial bank organized under the laws of the United States, or any
State thereof, and having a combined capital and surplus of at least
US$250,000,000; (iv) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof, and having a combined
capital and surplus of at least US$250,000,000; (v) a commercial bank organized
under the laws of any other country that is a member of the Organization for
Economic Cooperation and Development or has concluded special lending
arrangements with the
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International Monetary Fund, and having a combined capital and surplus of at
least US$250,000,000, so long as such bank is acting through a branch or agency
located in the United States; (vi) the central bank of any country that is a
member of the Organization for Economic Cooperation and Development; and (vii)
any other Person approved by the Administrative Agent and, unless an Event of
Default has occurred and is continuing at the time any assignment is effected in
accordance with Section 8.07, the Borrower, such approval not to be unreasonably
withheld or delayed; provided, however, that neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.
"ENVIRONMENTAL ACTION" means any action, suit, claim, consent order,
consent agreement, notice or demand, in each case, in writing, relating to any
Environmental Law, Environmental Permit or Hazardous Materials.
"ENVIRONMENTAL LAW" means any applicable federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order, judgment,
decree, policy or interpretation having the force of law relating to pollution
or protection of the environment.
"EQUITY INTERESTS" means, with respect to any Person, shares of capital
stock (or other ownership or profit interest in) such Person, warrants, options
or other rights for the purchase or other acquisition from such Person of shares
of capital stock of (or other ownership or profit interests in) such Person,
securities convertible into or exchangeable for shares of capital stock of (or
ownership or profit interests in) such Person or warrants, rights or options for
the purchase or other acquisition from such Person of such shares (or such other
interests), and other ownership or profit interests in such Person, including,
without limitation, partnership, member or trust interests therein, whether
voting or nonvoting, and whether or not such shares, warrants, options, rights
or other interests are authorized or otherwise existing on any date of
determination.
"EQUITY INVESTORS" means Macquarie Specialised Asset Management Limited
for and on behalf of Macquarie Global Infrastructure Fund A and Macquarie
Specialised Asset Management 2 Limited for and on behalf of Macquarie Global
Infrastructure Fund B and/or such other funds as Macquarie Global Infrastructure
Fund A and/or Macquarie Global Infrastructure Fund B may choose to invest in the
Equity Interests of Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414 of the Internal Revenue
Code.
"ERISA EVENT" means (a)(i) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day
notice requirement with respect to such event has been waived by the PBGC, or
(ii) the requirements of subsection (1) of Section 4043(b) of ERISA (without
regard to subsection (2) of such Section) are met with respect to a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of
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ERISA is reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the failure to meet the minimum funding standards of
ERISA or the Code with respect to a Single Employer Plan or application for a
minimum funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan pursuant
to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation of
operations at a facility of the Borrower or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by the
Borrower or any ERISA Affiliate from a Multiple Employer Plan during a plan year
for which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (f) the conditions for the imposition of a lien under Section 302(f) of
ERISA shall have been met with respect to any Plan; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; (h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any
event or condition described in Section 4042 of ERISA that constitutes grounds
for the termination of, or the appointment of a trustee to administer, a Plan;
or (i) a complete or partial withdrawal by the Borrower or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization.
"ESCROW AGENT" has the meaning specified in the Escrow Agreement.
"ESCROW AGREEMENT" means that certain Escrow Agreement dated July 29,
2002 among Macquarie Aviation North America Inc., Macquarie Aviation North
America 2 Inc., AMPORTS and Wilmington Trust Company.
"ESCROW PROCEEDS" means any amounts payable to the Purchaser
Subsidiaries pursuant to the Escrow Agreement.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name on Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for the Advances, to
the extent they are Eurodollar Rate Advances, an interest rate per annum equal
to the rate per annum obtained by dividing (a) the rate that is set forth on
Telerate Page Number 3750 (or any other page that may replace such page from
time to time) as of 11:00 A.M. (London time) on the second Business Day prior to
the first day of such Interest Period for US Dollar deposits having a tenor
equal to the applicable Interest Period or, if none of such page 3750 nor any
successor or similar service is available, the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the interest rate per annum at which deposits in US dollars are
offered by each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially equal to such
Reference Bank's
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Eurodollar Rate Advance and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period.
"EURODOLLAR RATE ADVANCE" means an Advance to the extent that it bears
interest as provided in Section 2.05(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period for an
Advance, to the extent it is a Eurodollar Rate Advance, means the reserve
percentage applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate of
the Eurodollar Rate Advance is determined) having a term equal to such Interest
Period; provided such percentage shall apply only to the extent such reserve
requirement applies to the Lender, otherwise such percentage shall equal zero.
"EVENT OF DEFAULT" has the meaning specified in Section 6.01.
"EXCESS CASH FLOW" means Operating Cash Flow minus (a) Senior Debt
Service, (b) fees and expenses due pursuant to Section 2.15 and due pursuant to
any Hedge Agreements, (c) interest, principal payments, fees and expenses with
respect to any working capital facility permitted under this Agreement, (d)
required funding of the Senior Debt Service Reserve Account and (e) Capital
Expenditures made during the applicable period.
"EXTRAORDINARY RECEIPT" means any cash received by or paid to or for
the account of any Person not in the ordinary course of business or on a
non-recurring basis, including, without limitation, tax refunds and pension plan
reversions; provided, however, that an Extraordinary Receipt shall not include
cash receipts received by any Person in respect of any third party claim against
such Person and applied to pay (or to reimburse such Person for its prior
payment of) such claim and the costs and expenses of such Person with respect
thereto; provided further that an Extraordinary Receipt shall not include
proceeds of any advance loss of profits insurance, delayed start-up or business
interruption insurance.
"FBO LEASES" shall mean the contracts with the relevant airport
authorities and other related agreements, including all real property leases
with the relevant airport authorities associated therewith, as set forth on
Schedule 1.01(a).
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
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"FEE AGREEMENTS" means the Administrative Agent Fee Agreement and the
Collateral Agent Fee Agreement.
"FINANCIAL MODEL" means the financial model delivered pursuant to
Section 3.01(c).
"FINANCIAL STATEMENTS" has the meaning set forth in Section 5.01(q).
"GAAP" has the meaning specified in Section 1.03.
"GENERAL ACCOUNT" has the meaning specified in the Security Agreement.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
federal, state, city, town, municipality, county, local or other political
subdivision thereof or thereto and any department, commission, board, bureau,
instrumentality, agency or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and includes, without limitation, the Securities Exchange Commission, the
National Association of Securities Dealers and other similar securities or
commodities exchanges.
"GRANTOR" shall mean each of Borrower and Macquarie Aviation North
America 2, Inc., a Delaware corporation, ILG Avcenter, Inc., a Delaware
corporation and Amports Avcenter, Inc., a Delaware corporation.
"HAZARDOUS MATERIALS" means (a) petroleum and petroleum products,
radioactive materials, asbestos-containing materials and polychlorinated
biphenyls and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or contaminant
under any Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"HISTORIC SEMI-ANNUAL SDSCR" means, on any SDSCR Determination Date,
the ratio of (a) Operating Cash Flow calculated for the six months immediately
preceding the SDSCR Determination Date, to (b) the amount equal to (i) the
interest on the Advances required to be paid pursuant to Section 2.05, during
the six-month period immediately preceding such SDSCR Determination Date plus or
minus, as applicable, (ii) the amounts payable by or to Borrower, as applicable,
under the Hedge Agreements required pursuant to Sections 3.01(q) and Sections
5.01(p).
"INDEMNIFIED PARTY" has the meaning specified in Section 8.04(b).
"INITIAL CLOSING DATE" has the meaning specified therefore in the
Purchase Agreement.
"INITIAL CONSIDERATION" has the meaning specified therefore in the
Purchase Agreement.
9
"INITIAL FUNDING" has the meaning specified in Section 3.01(j).
"INITIAL LENDERS" has the meaning specified in the introductory
paragraph.
"INITIAL SDSCR DETERMINATION DATE" means either (i) the date six months
after the last day of the Month preceding the Month of the Advances, if the date
of the Advances occurs on or prior to the 15th day of the Month of the Advances;
or (ii) the date six months after the last day of the Month of the Advances, if
the date of the Advances occurs after the 15th day of the Month of the Advances.
"INSURANCE PROCEEDS" has the meaning specified in the Security
Agreement.
"INSURANCES MEMORANDUM" means the insurances memorandum to be entered
into as of the date of the making of the Advances between the Borrower and the
Administrative Agent and initialed for identification purposes by the
Administrative Agent in relation to the insurances to be effected by the
Borrower from time to time in relation to such risks, matters and other events
or things and in such amounts and with such deductibles as the Administrative
Agent may initially require as the terms therein set out and otherwise in form
and substance reasonably satisfactory to the Administrative Agent acting in good
faith.
"INTERCOMPANY LOAN" or "INTERCOMPANY LOANS" has the meaning set forth
in Section 5.02(c)(ix).
"INTEREST PAYMENT DATE" has the meaning specified in the Security
Agreement.
"INTEREST PERIOD" means, for an Advance if and when it is a Eurodollar
Rate Advance, the period commencing on the date of the Eurodollar Rate Advance
or the date of the Conversion of the Advance from a Base Rate Advance into a
Eurodollar Rate Advance and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter, each subsequent
period commencing on the first day of the period selected by the Borrower
pursuant to the provisions below and ending on the last day of such period. The
duration of each such Interest Period shall be one, two, three or six months as
the Borrower may, upon notice received by the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the
first day of such Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period that
ends after the Maturity Date;
(ii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day; and
(iii) whenever the first day of any Interest Period occurs
on a day of an initial calendar month for which there is no numerically
corresponding day in the calendar
10
month that succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such Interest
Period shall end on the last Business Day of such succeeding calendar
month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"INVESTMENT" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any capital stock or other ownership or
profit interest, warrants, rights, options, obligations or other securities of
such Person, any capital contribution to such Person or any other investment in
such Person, including, without limitation, any arrangement pursuant to which
the investor incurs Debt of the types referred to in clause (h) or (i) of the
definition of "Debt" in respect of such Person.
"LENDERS" means the Initial Lenders and each Person that shall become a
party hereto as a "Lender" pursuant to Section 8.07.
"LENDER'S PERCENTAGE" means, at any time, the fraction of which the
numerator is the amount of the Advances then outstanding and the denominator is
the sum of the Advances then outstanding and the Initial Funding less any
repayment of Subordinated Debt or return of equity made, or to be made, in
connection with any return of Escrow Proceeds; provided, however, for purposes
of this definition, the Initial Funding shall not be deemed to include any
additional contributions to equity after the date of the Advances.
"LIEN" means any lien, security interest or other charge or encumbrance
of any kind, including, without limitation, the lien or retained security title
of a conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"LOAN DOCUMENTS" means (i) this Agreement, (ii) any Note, (iii) the
Collateral Documents, (iv) the Subordination Agreement, (v) each Notice and
Acknowledgement, (vi) the Hedge Agreements pursuant to Sections 3.01(q) and
5.01(p) of this Agreement, and (vii) the Fee Agreements.
"LOAN PARTIES" means, collectively, the Borrower, the Equity Investors
and each Grantor.
"MACQUARIE GLOBAL INFRASTRUCTURE FUND A" means, the Series A specialty
investment fund managed by Macquarie Specialised Assets Management Limited, as
Trustee.
"MACQUARIE GLOBAL INFRASTRUCTURE FUND B" means the Series B specialty
investment fund managed by Macquarie Specialised Asset management 2 Limited, as
Trustee.
"MAJORITY CONTROL" means the possession, directly or indirectly, by a
Person of the power to direct or cause the direction of the management and
policies of another Person through the ownership of voting securities in
ordinary and extraordinary matters, including restructuring of indebtedness and
amendment or replacement of organizational documents; provided, however, that a
Person shall not be deemed to possess Majority Control if by contract
11
or by order, decree or regulation of a Governmental Authority, such Person has
effectively ceded or been divested of the power to direct such management and
policies.
"MANAGEMENT CONTRACTS" shall mean the contracts with the relevant
airport authorities, as set forth on Schedule 1.01(b).
"MARGIN ADJUSTMENT AMOUNT" means the sum, if any, of the Applicable
Margin reduction for each Airport listed below for which the Borrower has
obtained the consent of the applicable airport authority for the creation of the
security interest by the applicable Subsidiary of the Borrower of the Material
Contracts for such Airport to the Collateral Agent for the benefit of the
Secured Parties pursuant to the terms of Section 5.01(r) hereof as of the Margin
Adjustment Date.
Airport Applicable Margin reduction
------- ---------------------------
Louisville 6 basis points
Pittsburgh 5 basis points
Teterboro 2 basis points
Gulfport 2 basis points
Atlantic City 2 basis points
Tweed-New Haven 2 basis points
Burlington 2 basis points
Republic 2 basis points
Wilmington (New Castle) 2 basis points
"MATERIAL ADVERSE CHANGE" means any occurrence or event that is
reasonably likely to have a Material Adverse Effect.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, assets, condition (financial or otherwise), operations or property of
the Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies
of the Administrative Agent or any Lender under the Loan Documents or (c) the
ability of the Borrower to perform its obligations under this Agreement or the
other Loan Documents or the Purchase Agreement.
"MATERIAL CONTRACT LIEN" shall mean any Lien (including any Permitted
Lien other than Liens (i) securing any Advance, (ii) imposed by governmental
authorities for taxes, assessments or charges not at the time overdue and/or
(iii) construction, repairs, mechanics, materialmen's, storage or similar Liens
arising in the ordinary course of business or incidental to the construction,
operation or improvement of any property for sums which are not overdue) created
on, over or with respect to any interest of the Borrower and/or its Subsidiaries
in, to or with respect to any FBO Lease and/or Management Contract in an amount
greater than 10% of the value allocated to the Airport, as set forth on Schedule
1.01(d) hereto, to which such FBO Lease and/or Management Contract relates. Such
allocated value being the "Material Contract Value".
"MATERIAL CONTRACT RIGHTS" shall mean, with respect to any Material
Contract, each and all rights, title, interest in, under, to or arising out or
in connection with such Material
12
Contract, including without limitation, (i) rights to receive moneys due and to
become due under or pursuant to such Material Contract, (ii) rights to receive
proceeds of any insurance, indemnity, warranty or guaranty with respect to such
Material Contract, (iii) claims for damages arising out of or for breach of or
default under such Material Contract, and (iv) the right to terminate such
Material Contract, to perform thereunder and to compel performance and otherwise
exercise all remedies thereunder.
"MATERIAL CONTRACTS" shall mean the Management Contracts, the FBO
Leases, the Purchase Agreement, the Escrow Agreement, the Non-Competition
Agreement, and the Airports Consents, all as set forth on Schedule 1.01(c).
"MATURITY DATE" means the fifth (5th) anniversary of the date of the
Advances.
"MONTH OF THE ADVANCES" means the calendar month in which the date of
the Advances occurs.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
400 1(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 400l(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and at least one Person other than the Borrower
and the ERISA Affiliates or (b) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under Section 4064 or 4069
of ERISA in the event such plan has been or were to be terminated.
"NON-COMPETE PAYMENT" means the seven million five hundred thousand
U.S. Dollars (US$7,500,000) payable to ABPH by the Purchaser pursuant to the
Non-Competition Agreement.
"NON-COMPETITION AGREEMENT" has the meaning specified in the Purchase
Agreement.
"NON-COMPETITION PAYMENT" has the meaning specified therefore in the
Purchase Agreement.
"NOTE" means any promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A hereto, evidencing the
indebtedness of the Borrower to such Lender resulting from the Advance made by
such Lender.
"NOTICE AND ACKNOWLEDGMENT" has the meaning specified in the Security
Agreement.
"NOTICE OF ADVANCES" has the meaning specified in Section 2.02.
13
"OPERATING CASH FLOW" means for any period (i) EBITDA less (ii) Taxes
Paid plus (iii) interest earned on the Senior Debt Service Reserve Amount and on
amounts in the other Pledged Accounts.
"OUTSIDE DATE" has the meaning specified in the Purchase Agreement.
"OTHER TAXES" has the meaning specified in Section 2.12.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERMITTED LIENS" means:
(a) Liens securing any Advance;
(b) Liens arising in the ordinary course of business
which do not secure Debt and which in the aggregate do not exceed
US$1,000,000 on a consolidated basis of the Borrower and its
Subsidiaries;
(c) Liens imposed by governmental authorities for taxes,
assessments or charges or Liens imposed by utility rates or charges, in
each case, not at the time overdue;
(d) Liens imposed by governmental authorities for overdue
taxes, assessments or charges or Liens imposed by utility rates or
charges overdue and the validity or amount of which is being contested
in good faith by appropriate proceedings, but only for so long as such
contestation effectively postpones enforcement of any such Liens;
(e) Liens incurred or deposits made in the ordinary
course of the operation of the Borrower and its Subsidiaries in
connection with workers' compensation, unemployment insurance, social
security, pension and similar legislation;
(f) Liens given to a public utility or any governmental
authority when required in the ordinary course of operations of the
Borrower and its Subsidiaries;
(g) Construction, repair, mechanics, materialmen's,
storage or similar Liens arising in the ordinary course of business or
incidental to the construction, operation or improvement of any
property for sums which are not overdue or the validity or amount of
which is being contested in good faith by appropriate proceedings, but
only for so long as such contestation effectively postpones enforcement
of any such Liens and only in respect of which adequate reserves are
being maintained to ensure the payment of such Liens, or such Liens
could not reasonably be expected to have a Material Adverse Effect;
(h) Easements and any registered restrictions or
covenants that run with the property of the Borrower and its
Subsidiaries; provided that such
14
easements, restrictions and covenants, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect;
(i) Easements, rights of way for, or reservations or
rights of others relating to, sewers, water lines, gas lines,
pipelines, electric lines, cable television, telegraph and telephone
lines, telecommunications services and other similar products or
services provided that such easements, rights of way and reservations,
in the aggregate, could not reasonably be expected to have a Material
Adverse Effect; and
(j) Zoning by-laws, ordinances or restrictions as to the
use of real property, and agreements with other Persons registered
against title to real property owned or leased by the Borrower and its
Subsidiaries; provided that none of such by laws, ordinances or
restrictions could reasonably be expected to have a Material Adverse
Effect.
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PLEDGE AGREEMENT" means the pledge agreement dated the date of the
Advances by Equity Investors in favor of the Collateral Agent for the benefit of
the Secured Parties substantially in the-form of Exhibit F.
"PLEDGED ACCOUNTS" has the meaning specified in the Security Agreement.
"PROJECTED SDSCR" means, on any date of determination, the ratio of (a)
Operating Cash Flow during the fiscal quarter in which such determination is
made and the three fiscal quarters immediately succeeding such fiscal quarter to
(b) the sum of interest on the Advances required to be paid pursuant to Section
2.05 during the fiscal quarter in which such determination is made and the three
fiscal quarters immediately succeeding such fiscal quarter (assuming the
interest rates on the date of determination remain in effect for such period).
"PURCHASE AGREEMENT" means the Sale and Purchase Agreement by and among
AMPORTS as Seller, Macquarie Aviation North America Inc. and Macquarie Aviation
North America 2 Inc., as Purchasers and Macquarie Specialised Asset Management
Limited, as Trustee, for and on behalf of Macquarie Global Infrastructure Fund A
and Macquarie Specialised Asset Management 2 Limited, as Trustee, for and on
behalf of Macquarie Global Infrastructure Fund B, as guarantors, relating to the
purchase of the Aviation Assets.
"PURCHASE PRICE" has the meaning specified in the Purchase Agreement
plus (i) the Non-Competition Payment and (ii) Transitional Services Agreement
Payment.
"PURCHASER SUBSIDIARIES" shall have the meaning set forth in Paragraph
(1) of the Preliminary Statements.
15
"REFERENCE BANKS" means XX Xxxxxx Xxxxx Bank, Citibank and WestLB.
"REGISTER" has the meaning specified in Section 8.07(c).
"REPLACEMENT SENIOR DEBT" has the meaning specified in Section
5.02(c)(iii).
"REPLACEMENT SUBORDINATED DEBT" has the meaning specified in Section
5.02(c)(iv).
"REQUIRED AMOUNT" has the meaning specified in the Security Agreement.
"REQUIRED HEDGE AMOUNT" means an amount equal to not less than 50% of
the product of (a) the sum of (i) the Initial Consideration, (ii) the
Non-Competition Payment, (iii) the Transitional Services Agreement Payment and
(iv) for the period following the earlier of the (x) Outside Date, (y) the date
on which Escrow Proceeds are released and (z) the Subsequent Closing Date
following the receipt of all Airport Consents, all Subsequent Consideration
effectively paid by the Purchaser Subsidiaries as of the relevant determination
date and (b) the Lender's Percentage.
"REQUIRED LENDERS" means at any time Lenders owed at least a majority
in interest of the then aggregate unpaid principal amount of the Advances owing
to Lenders, or, if no such principal amount is then outstanding, Lenders having
at least a majority in interest of the Commitments.
"RESPONSIBLE OFFICER" means, for any Person, the president,
vice-president, treasurer or assistant treasurer of such Person.
"REVISED TERMINATION DATE" has the meaning specified in the Purchase
Agreement.
"SDSCR DETERMINATION DATE" means any of (i) the Initial SDSCR
Determination Date; and (ii) the last day of each subsequent three-month period
after the Initial SDSCR Determination Date.
"SECURED OBLIGATIONS" has the meaning specified in the Security
Agreement.
"SECURED PARTIES" means the Lenders and Agents.
"SECURITY AGREEMENT" means the Security Agreement dated the date of the
Advances among Borrower, the Grantors, the Collateral Agent and Citibank, not in
its individual capacity but solely as Depositary Bank, substantially in the form
of Exhibit G.
"SECURITY AGREEMENT COLLATERAL" means the collateral described in the
Security Agreement.
"SENIOR DEBT" shall have the meaning set forth in Paragraph (2) of the
Preliminary Statements.
16
"SENIOR DEBT SERVICE" means all interest payments due pursuant to
Section 2.05.
"SENIOR DEBT SERVICE ACCOUNT" has the meaning specified in the Security
Agreement.
"SENIOR DEBT SERVICE RESERVE ACCOUNT" has the meaning specified in the
Security Agreement.
"SENIOR DEBT SERVICE RESERVE AMOUNT" has the meaning specified in the
Security Agreement.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and no Person other than the Borrower or any
ERISA Affiliate (other than a Multiemployer Plan) or (b) was so maintained and
in respect of which the Borrower or any ERISA Affiliate could have liability
under Section 4069 of ERISA in the event such Plan has been or were to be
terminated.
"SUBORDINATED LENDERS" means Macquarie Specialised Asset Management
Limited, as Trustee for and on behalf of Macquarie Global Infrastructure Fund C
and Macquarie Specialised Asset Management 2 Limited, as Trustee, for and on
behalf of Macquarie Global Infrastructure Fund D.
"SUBORDINATED LOANS" means loans from the Subordinated Lenders to
Borrower, which loans are made pursuant to the Subordinated Loan Agreement and
are subordinated to the obligations of the Borrower under the Loan Documents in
accordance with the terms of the Subordination Agreement.
"SUBORDINATED LOAN AGREEMENT" means a loan agreement to be dated the
date of the Initial Funding between the Borrower and Subordinated Lenders, as
lenders, duly executed and delivered and substantially in the form of Exhibit D.
"SUBORDINATION AGREEMENT" means (i) the Subordination Agreement, to be
dated as of the date of the Advances, among the Borrower and Subordinated Lender
or any successor or assignee thereof in favor of the Secured Parties, duly
executed and delivered and substantially in the form of Exhibit E and (ii) each
other subordination agreement among Borrower and any lender of Replacement
Subordinated Debt, in favor of the Secured Parties and then remaining in effect,
as provided in Section 5.02(c)(iv).
"SUBSEQUENT CLOSING" has the meaning specified in the Purchase
Agreement.
"SUBSEQUENT CLOSING DATE" has the meaning specified in the Purchase
Agreement.
"SUBSIDIARY" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class
17
or classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital or profits of
such limited liability company, partnership or joint venture or (c) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more of
its other Subsidiaries or by one or more of such Person's other Subsidiaries.
"TAXES" has the meaning specified in Section 2.12(a).
"TAXES PAID" means for any period, the aggregate amount of taxes,
levies, imposts, deductions and withholdings paid by the Borrower or any of its
Subsidiaries in respect of such period, including income and franchise taxes.
"TERMINATION DATE" means the earlier of (i) termination of the Purchase
Agreement, (ii) the later of (a) December 31, 2002 or (b) Revised Termination
Date and (iii) the date of termination in whole of the Commitments pursuant to
Section 2.03 or 6.01 herein.
"TRANSITIONAL SERVICES AGREEMENT PAYMENT" has the meaning specified
therefore in the Purchase Agreement.
"UNFUNDED PENSION LIABILITY" means the excess of a Plan's benefit
liabilities, under Section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in accordance with the assumptions used for funding
the Plan pursuant to Section 412 of the Internal Revenue Code for the applicable
plan year.
"VOTING STOCK" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even if the right so
to vote has been suspended by the happening of such a contingency.
"WESTLB" has the meaning specified in the introductory paragraph
hereof.
1.02 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
1.03 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with United States generally
accepted accounting principles as in effect from time to time ("GAAP").
1.04 Interpretation. In this Agreement, except to the extent that
the context otherwise requires:
(a) Unless otherwise specified, references to Articles, Sections,
clauses, Schedules and Exhibits are references to Articles, Sections and
clauses of, and Schedules and Exhibits to, this Agreement;
(b) References to any document or agreement, including this
Agreement, shall be deemed to include references to such document or
agreement as amended,
18
supplemented or replaced and in effect from time to time in accordance with
its terms and subject to compliance with the requirements set forth therein
and herein; and
(c) References to any party to this Agreement or any other
document or agreement shall include such party's successors and permitted
assigns (and in the case of any governmental entity, any Person succeeding
to its functions and capacities).
ARTICLE II
AMOUNT AND TERMS OF THE ADVANCES
2.01 The Advances. Each Lender agrees severally, on the terms and
conditions hereinafter set forth, to make a single Advance to the Borrower on
any Business Day during the period from the Effective Date until the Termination
Date in an aggregate amount not to exceed the amount set forth opposite such
Lender's name on the signature pages hereof, as such amount may be reduced
pursuant to Section 2.03 or 6.01 (such Lender's "COMMITMENT"). The aggregate
amount of the Advances shall be US$36,000,000 and shall consist of Advances of
the same Type made on the same day by the Lenders ratably according to their
respective Commitments. Amounts borrowed under this Section 2.01 and repaid or
prepaid may not be reborrowed.
2.02 Making the Advances. (a) The Advances shall be made on notice,
given not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the date of the proposed Advances in the case of Eurodollar Rate
Advances, or the first Business Day prior to the date of the proposed Advances
in the case of Base Rate Advances, by the Borrower to the Administrative Agent,
which shall give to each Lender prompt notice thereof by telecopier. Such notice
of Advances (a "Notice of Advances") shall be by telephone, confirmed
immediately in writing, or telecopier, in substantially the form of Exhibit B
hereto, specifying therein the requested (i) date of the Advances, (ii) Type of
Advances, (iii) amount of such Advances, and (iv) if Eurodollar Rate Advances,
initial Interest Period therefor. Each Lender shall, before 11:00 A.M. (New York
City time) on the date of such Advance, make available for the account of its
Applicable Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's Advance. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower at the Administrative Agent's address
referred to in Section 8.02.
(b) The Notice of Advances shall be irrevocable and binding on the
Borrower. If the Notice of Advances specifies the Advances will be Eurodollar
Rate Advances, the Borrower shall indemnify each Lender against any loss, cost
or expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in the Notice of Advances the applicable conditions
set forth in Article III, including, without limitation, any loss (excluding
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund the Advance to be made by such Lender when such Advance, as a result of
such failure, is not made on such date.
(c) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of the Advances that such Lender will not make
available to the Administrative Agent such Lender's Advance, the Administrative
Agent may assume that such Lender has made
19
such Advance available to the Administrative Agent on the date of such Advance
in accordance with subsection (a) of this Section 2.02 and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have so made such Advance available to the Administrative Agent, such Lender
and the Borrower severally agree to repay to the Administrative Agent forthwith
on demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to the Advances and (ii) in
the case of such Lender, the Federal Funds Rate. If such Lender shall repay to
the Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Advance for purposes of this Agreement.
(d) The failure of any Lender to make the Advance to be made by it
shall not relieve any other Lender of its obligation, if any, hereunder to make
its Advance on the date of such Advance, but no Lender shall be responsible for
the failure of any other Lender to make the Advance to be made by such other
Lender on the date of the Advances.
2.03 Termination or Reduction of the Commitments. The Borrower
shall have the right, upon at least five Business Days' notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the
Commitments of the Lenders prior to the date of the Advances, provided that each
partial reduction shall be in the aggregate amount of US$1,000,000 or an
integral multiple of US$1,000,000 in excess thereof.
2.04 Repayment. The Borrower shall repay to the Administrative
Agent for the ratable account of the Lenders on the Maturity Date the aggregate
principal amount of the Advances then outstanding.
2.05 Interest.
(a) Scheduled Interest. The Borrower shall pay interest on the
unpaid principal amount of the Advance owing to each Lender from the date of
such Advance until such principal amount shall be paid in full, at the following
rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to (x) the Base Rate
in effect from time to time plus (y) the Applicable Margin, payable in
arrears quarterly on the last day of each December, March, June and
September during such periods and on the date such Base Rate Advance shall
be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance
is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (x) the Eurodollar Rate
for such Interest Period for such Advance plus (y) the Applicable Margin,
payable in arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first day of
such Interest Period and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
20
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01 (except Section 6.01(c)),
the Borrower shall pay interest on (i) the unpaid principal amount of the
Advance owing to each Lender, payable in arrears on the dates referred to in
clause (a)(1) or (a)(ii) above, at a rate per annum equal at all times to 1.5%
per annum above the rate per annum required to be paid on the Advance pursuant
to clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by
law, the amount of any interest or other amount payable hereunder that is not
paid when due, from the date such amount shall be due until such amount shall be
paid in full, payable in arrears on the date such amount shall be paid in full
and on demand, at a rate per annum equal at all times to 1.5% per annum above
the rate per annum required to be paid on the Advances pursuant to clause (a)(i)
or (a)(ii)above.
2.06 Interest Rate Determination.
(a) If applicable if any one or more of the Reference Banks shall
not furnish such timely information to the Administrative Agent for the purpose
of determining any such interest rate, the Administrative Agent shall determine
such interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.05(a)(i) or (ii), and the rate,
if any, furnished by each Reference Bank for the purpose of determining the
interest rate under Section 2.05(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Required Lenders of making, funding or maintaining their respective Eurodollar
Rate Advances for such Interest Period, the Administrative Agent shall forthwith
so notify the Borrower and the Lenders, whereupon (i) the Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance, and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Interest Period shall be deemed to be three months and the Administrative Agent
will forthwith so notify the Borrower and the Lenders.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances shall be reduced, by payment or prepayment or
otherwise, to less than US$5,000,000, such Advances shall automatically Convert
into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert the Advances into,
Eurodollar Rate Advances shall be suspended until such Event of Default is cured
or waived.
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(i) If applicable, if fewer than two Reference Banks furnish
timely information to the Administrative Agent for determining the
Eurodollar Rate for any Eurodollar Rate Advances,
(ii) the Administrative Agent shall forthwith notify the Borrower
and the Lenders that the interest rate cannot be determined for such
Eurodollar Rate Advances,
(iii) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance
(or if such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(iv) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the Administrative
Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
2.07 Optional Conversion of Advances. The Borrower may on any
Business Day, upon notice given to the Administrative Agent not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Conversion and subject to the provisions of Sections 2.06 and 2.10,
Convert all Advances from one Type into Advances of the other Type; provided,
however, that any Conversion of Eurodollar Rate Advances into Base Rate Advances
shall be made only on the last day of an Interest Period for such Eurodollar
Rate Advances and any Conversion of a Base Rate Advance into a Eurodollar Rate
Advance shall be in an aggregate amount not less than the minimum amount
specified in Section 2.06(d). Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, and (ii)
if such Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
2.08 Optional and Mandatory Prepayments.
(a) The Borrower may, without penalty, upon at least five Business
Days' written notice to the Administrative Agent stating the proposed date and
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the Advances in whole or in part; provided, however, that each
partial prepayment shall be in an aggregate principal amount of US$5,000,000 or
an integral multiple of US$1,000,000 in excess thereof.
(b) If as of the SDSCR Determination Date, the Historic
Semi-Annual SDSCR is equal to or less than 1.625 to 1.0, the Borrower shall
prepay the Advances within seven (7) Business Days of the SDSCR Determination
Date by an amount equal to the Excess Cash Flow for the three month period
immediately preceding such SDSCR Determination Date.
(c) To the extent any Insurance Proceeds are allocated pursuant to
Section 3.07 of the Security Agreement to make any prepayments hereunder, on the
Interest Payment Date applicable to this Agreement immediately succeeding the
date on which such amounts become available, the Borrower shall prepay the
Advances by an amount equal to any amounts so allocated.
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(d) Upon execution by the Seller of the Direction Letter pursuant
to Section 3.4 of the Escrow Agreement the Borrower shall prepay the Advances
within the following 3 business days after such execution in an amount equal to
that portion of the Purchase Price allocable to the Airport or Airports whose
Aviation Assets are not purchased by the Purchaser Subsidiaries so that the
Lender's Percentage, after giving effect to such prepayment, shall equal the
Lender's Percentage effective as of the date of the Advances.
(e) In the event of the existence, creation or imposition of a
Material Contract Lien, the Borrower shall prepay the Advances by an amount
equal to the lesser of (i) the amount secured or intended to be secured by such
Material Contract Lien and (ii) the Material Contract Value of such Material
Contract, if any such Material Contract Lien shall not be removed or bonded
within thirty (30) days after receipt of written notice of the creation or
imposition of such Material Contract Lien. Notwithstanding the foregoing, the
provisions of this Section 2.08(e) shall not be applicable with respect to each
Airport for which a consent is received in accordance with Section 5.01(r).
(f) In the event that any representation and warranty required to
be made by Borrower on any Subsequent Closing pursuant to the terms of Section
5.01(s) shall not be true and correct before and after giving effect to such
Subsequent Closing, and in the case of any representation and warranty made
pursuant to Section 4.01(r) with respect to Aviation Assets having an aggregate
value not in excess of 10% of the Purchase Price allocable to the applicable
Airport such failure shall remain uncured for sixty (60) days following such
Subsequent Closing, the Borrower shall prepay the Advances by an amount equal to
that portion of the Purchase Price allocable to the Airport or Airports with
respect to which such representation and warranty is not true and correct so
that the Lender's Percentage, after giving effect to such prepayment, shall
equal the Lender's Percentage effective as of the date of the Advances.
(g) Each prepayment of Advances shall be (i) allocated among the
Lenders pro rata based on their respective portion of the Advances, (ii)
accompanied by the payment of accrued interest on the amount prepaid to the date
of prepayment and (iii) in the event of a prepayment of a Eurodollar Rate
Advance, accompanied by any amount payable pursuant to Section 8.04(c).
2.09 Increased Costs.
(a) If, due to either (i) the introduction of or any change in or
in the interpretation of any law or regulation after the date hereof or (ii) the
compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) after the date
hereof, there shall be any increase in the actual cost to any Lender of agreeing
to make or making, funding or maintaining Eurodollar Rate Advances (excluding
for purposes of this Section 2.09 any such increased costs resulting from (x)
Taxes or Other Taxes (as to which Section 2.12 shall govern) and (y) changes in
the basis of taxation of overall net income or overall gross income (or
franchise tax in lieu of such taxes) by the United States or by the foreign
jurisdiction or by state or local Governmental Authority under the laws of which
such Lender is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Borrower shall from time to time, upon demand by
such Lender (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for
23
the account of such Lender additional amounts sufficient to compensate such
Lender for such actual increased cost.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), the Borrower
shall pay to the Administrative Agent for the account of such Lender, from time
to time as specified by such Lender, additional amounts sufficient to compensate
such Lender or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital to be
allocable to the existence of such Lender's commitment to lend hereunder.
(c) Each Lender shall notify the Borrower of any event occurring
after the date of this Agreement entitling such Lender to the compensation under
paragraph (a) or (b) of this Section 2.09 as promptly as practicable, but in any
event within 120 days, after such Lender obtains actual knowledge thereof,
provided that if any Lender fails to give such notice within 120 days after it
obtains actual knowledge of such an event, such Lender shall, with respect to
compensation payable pursuant to this Section 2.09 in respect of any costs
resulting from such event, only be entitled to payment under this Section 2.09
for costs incurred from and after the date 120 days prior to the date that such
Lender does give such notice. Each Lender will furnish to the Borrower (with a
copy to the Administrative Agent) a certificate setting forth the basis and
amount of each such request by such Lender for compensation under paragraph (a)
or (b) of this Section 2.09. Determinations and allocations by any Lender for
purposes of this Section 2.09 of the effect of any event pursuant to this
Section 2.09 shall be conclusive and binding for all purposes, absent error in
the calculation of such amount.
2.10 Illegality.
(a) Notwithstanding any other provision of this Agreement, if any
Lender shall notify the Administrative Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Lender or its Eurodollar Lending Office to perform its obligations
hereunder to make Eurodollar Rate Advances or to fund or maintain a Eurodollar
Rate Advance hereunder, (i) the Eurodollar Rate Advance will automatically, upon
such notice, Convert into a Base Rate Advance and (ii) the obligation of the
Lenders to make, or to Convert such Advance into, a Eurodollar Rate Advance
shall be suspended until the Administrative Agent shall notify the Borrower and
the Lenders that the circumstances causing such suspension no longer exist.
(b) Each of the Lenders hereby agrees that, upon the occurrence of
any circumstances entitling such Lender to additional compensation or to cease
making, participating in or renewing, or funding or maintaining, Eurodollar Rate
Advances under any of the foregoing provisions of Section 2.09 or this Section
2.10, such Lender shall use reasonable efforts (consistent with its existing
internal policy applied on a nondiscriminatory basis and with
24
applicable legal and regulatory restrictions) to designate a different
applicable Lending Office for any Advances affected by such circumstances and/or
to take any other reasonable actions requested by the Borrowers if the making of
such designation or the taking of such actions, in the case of Section 2.09,
would avoid the need for such additional compensation or, in the case of Section
2.10, would allow such Lender to continue to perform its obligations to make, to
participate in or renew, or to fund or maintain, Eurodollar Rate Advances, and,
in any such case, would not, in the reasonable judgment of such lender, be
otherwise disadvantageous to such Lender.
2.11 Payments and Computations.
(a) The Borrower shall make each payment hereunder and under the
Notes not later than 11:00 A.M. (New York City time) on the day when due in US
Dollars to the Administrative Agent at the Administrative Agent's Account in
same day funds. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.09, 2.12
or 8.04(c)) to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this
Agreement and the other Loan Documents. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register
pursuant to Section 8.07(d), from and after the effective date specified in such
Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall be
made by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurodollar Rate
or the Federal Funds Rate shall be made by the Administrative Agent on the basis
of a year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest is payable. Each determination by the Administrative Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest; provided, however,
that, if such extension would cause payment of interest on or principal of
Eurodollar Rate Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each
25
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
2.12 Taxes.
(a) Any and all payments by the Borrower hereunder or under the
Notes shall be made, in accordance with Section 2.11, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Administrative Agent, taxes
imposed on overall net income or overall gross income and franchise taxes
imposed in lieu of such taxes imposed on the Administrative Agent or any Lender
by the jurisdiction in which the Administrative Agent or the Lender, as the case
may be, is organized or is a resident or has a fixed place of business or a
permanent establishment or any political subdivision of the foregoing or where
the Lender's Applicable Lending Office is located or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or under the Notes
being hereinafter referred to as "Taxes"). If the Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder or under
any Note to any Lender or the Administrative Agent, (1) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.12) such Lender or Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant taxing authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, performing under, or otherwise
with respect to, this Agreement or the Notes (hereinafter referred to as "OTHER
TAXES").
(c) The Borrower shall indemnify each Lender and the
Administrative Agent for and hold them harmless against the full amount of Taxes
or Other Taxes imposed on or paid by such Lender or Administrative Agent, as the
case may be, and any liability (including penalties, interest and reasonable out
of-pocket expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender or
Administrative Agent, as the case may be, makes written demand therefor. If the
Borrower determines in good faith that a reasonable basis exists for contesting
any Taxes as to which additional amounts are payable under Section 2.12(a) or
(c) or for which indemnification has been demanded under Section 2.12(a) or (c),
each Lender and each Administrative Agent shall (to the extent such party
determines in good faith that it shall not suffer any material adverse
consequences as a result thereof) cooperate with the Borrower in challenging
such Taxes at the expense of the Borrower if so requested by the Borrower in
writing.
26
(d) Within thirty (30) days after the date of any payment of
Taxes, the Borrower shall furnish to the Administrative Agent, at its address
referred to in Section 8.02, the original or a certified copy of a receipt
evidencing such payment. In the case of any payment hereunder or under the Notes
by or on behalf of the Borrower through an account or branch outside the United
States or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect thereof,
the Borrower shall furnish, or shall cause such payor to furnish, to the
Administrative Agent, at such address, an opinion of counsel reasonably
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes. For purposes of this subsection (d) and subsection (e), the terms "United
States" and "United States person" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
(e) If a Lender is organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement (or at such later time as such Lender becomes a party to this
Agreement), and from time to time thereafter as requested in writing by the
Borrower (but only so long as such Lender remains lawfully able to do so), such
Lender shall provide the Borrower with two original Internal Revenue Service
form W-8BENs certifying that (i) it is entitled to a reduced rate of United
States withholding tax on payments receivable under this Agreement or the Note
in accordance with an applicable tax treaty or (ii) it is not a United States
person (in the second case accompanied by a certificate representing that it is
not a "bank" for purposes of Section 881(c) of the Internal Revenue Code, is not
a 10 percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of the Loan Party and is not a controlled foreign
corporation related to the Loan Party (within the meaning of Section 864(d)(4)
of the Internal Revenue Code)), or two original Internal Revenue Service form
W-8ECIs certifying that payments receivable by it under this Agreement or the
Note are effectively connected to a United States trade or business, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service. If the form provided by the Lender at the time the Lender becomes a
party to this Agreement indicates (or if correctly completed, would indicate) a
United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes unless and until the Lender
provides the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required by Internal
Revenue Service form W-8BEN or W-8ECI (or any successor forms) that the Lender
reasonably considers to be confidential, the Lender shall give notice thereof to
the Borrower and shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.12(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided or if such form
otherwise is not required under subsection (e) above), such Lender shall not be
entitled to indemnification under Section 2.12(a) or (c) with respect to Taxes
imposed by the United States by reason of such failure; provided, however, that
should such Lender become subject to Taxes because of its failure to deliver a
form required hereunder, the
27
Borrower shall take such steps as such Lender shall reasonably request to assist
such Lender to recover such Taxes.
(g) If a Lender determines, in its reasonable discretion, that it
has actually and finally realized in a year in which a payment under the Loan
Documents is made or in any subsequent year, by reason of a refund, deduction or
credit of any Taxes or Other Taxes paid or reimbursed by the Borrower pursuant
to subsection (a) or (c) above in respect of payments under the Loan Documents,
a current monetary benefit that it would otherwise not have obtained, and that
would result in the total payments under this Section 2.12 exceeding the amount
needed to make such Lender whole, such Lender shall pay to the Borrower, with
reasonable promptness following the date on which it actually realizes such
benefit, an amount equal to the lesser of the amount of such benefit or the
amount of such excess, in each case net of all out-of-pocket expenses in
securing such refund, deduction or credit.
(h) If a Lender claims any additional amounts payable pursuant to
this Section 2.12, it shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document requested by
Borrower or to change the jurisdiction of its Applicable Lending Office and take
any other reasonable actions requested by Borrower if the making of such a
filing or change or the taking of such actions would avoid the need or reduce
the amount of any such additional amounts that may thereafter accrue and would
not, in the reasonable judgment of such Lender, be otherwise disadvantageous to
such Lender.
2.13 Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advance owing to it (other than
pursuant to Section 2.09, 2.12 or 8.04(c)) in excess of its ratable share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.13
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
2.14 Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) only to
partially fund either directly or through one of its wholly-owned Subsidiaries
(a) the purchase of all of those certain aviation assets of AMPORTS as described
in the Purchase Agreement, (b) the Non-compete Payment, (c) other payments under
Purchase Agreement, (d) to pay all transaction costs in respect of the
transactions contemplated hereby and by the Purchase Agreement, (e) to provide
for cash on
28
hand, (f) to find the Senior Debt Service Reserve Account, (g) to fund the
obligations under the Escrow Agreement and (h) the payment under the
Transitional Services Agreement.
2.15 Fees.
(a) The Borrower shall pay to the Administrative Agent for its
account the fees in the amounts and at the times set forth in the Administrative
Agent Fee Agreement.
(b) The Borrower shall pay to the Collateral Agent for its account
the fees in the amounts and at the times set forth in the Collateral Agent Fee
Agreement.
(c) The Borrower shall pay to the Administrative Agent for the
account of each Lender a commitment fee on the aggregate amount of the
Commitments at a rate equal to 0.375% per annum, which fee shall be allocated
among the Lenders pro rata according to their Commitments. Such commitment fee
shall be payable for the period beginning on the date of this Agreement and
ending on the date of the Advances.
(d) The Borrower shall pay to the Administrative Agent an
underwriting fee equal to 0.375% of the aggregate amount of the Commitments.
Such underwriting fee shall be payable on the date of the Advances.
ARTICLE III
CONDITIONS TO MAKING ADVANCES
3.01 Conditions Precedent to the Making of the Advances. The
obligation of each Lender to make any Advance shall be subject to the
fulfillment of the following conditions precedent:
(a) There shall exist no material action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its Subsidiaries
or any other Loan Party pending or threatened before any court,
governmental agency or arbitrator that (i) could reasonably be expected to
have a Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or any other Loan
Document or the consummation of the transactions contemplated hereby or
pursuant to the Purchase Agreement.
(b) (i) Sufficient Airport Consents shall have been obtained so
that the aggregate Allocable Percentages relative to the Airports whose
businesses are to be transferred at the Initial Closing (including, without
limitation, the Core Assets) shall equal at least eighty percent (80%) and
(ii) the Borrower or one of its Subsidiaries shall either (A) have been
assigned the benefit of, or (B) shall have access to the services under or
provided by, all other contracts and other assets necessary for the
continued operation of the Airports whose businesses are being transferred
at the Initial Closing; (iii) all applicable waiting periods including any
extensions thereof, clearance approval or filing under the Xxxx-Xxxxx
Xxxxxx Antitrust Improvements Act of 1976, as amended, or under any other
Antitrust Law or regulation relating to the transactions contemplated
hereby shall have expired or been terminated or shall have been obtained or
made and (iv) the US Government shall have notified the Purchasers of a
decision to take no action with
29
respect to any notice filed by the Purchaser Subsidiaries to the Committee
on Foreign Investment in the United States in connection with the
acquisition of the Aviation Assets. If less than 100% of the Airport
Consents have been received by the date of the Advances, as specified in
the Notice of Advances, a pro rata share of the Advances shall be held in
escrow in accordance with the terms of the Escrow Agreement.
(c) The Administrative Agent shall have received a financial model
documenting the financing structure, assumptions and coverage ratios in
form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received the unaudited
balance sheets of the AMPORTS Aviation Group for the fiscal year ended
December 31, 2001 and for the six (6) month period ended June 30, 2002 (the
"JUNE 30TH FINANCIAL STATEMENTS") and the related statement of income and
cash flows for the period then ended.
(e) The Administrative Agent shall have received a pro forma
balance sheet on a consolidated basis (the "INITIAL CLOSING DATE BALANCE
SHEET") of the Borrower and its Subsidiaries prepared based on the June
30th Financial Statements and the estimated Working Capital Statements
delivered by Seller pursuant to Section 2.08(a) of the Purchase Agreement
giving effect to the Advances and the Initial Funding, subject to the
Working Capital Adjustment process provided in Section 2.08 of the Purchase
Agreement.
(f) On and as of the date of the Advances, the following
statements shall be true and the Administrative Agent shall have received
for the account of each Lender a certificate signed by a Responsible
Officer of the Borrower, dated the date of the Advances, stating that:
(i) The representations and warranties of the Borrower
and each of its Affiliates, contained in this Agreement and in any
other Loan Document, are true and correct on and as of the date of the
Advances with the same effect as though such representations and
warranties had been made on and as of such date (other than
representations and warranties which speak as of an earlier date, which
need only be true and correct as of such earlier date), and
(ii) Prior and after giving effect to the Advances and the
transactions contemplated by the Loan Documents, no event has occurred
and is continuing that constitutes a Default.
(g) The Administrative Agent shall have received on or before the
Effective Date the following, each dated such date, in form and substance
reasonably satisfactory to the Administrative Agent:
(i) The Fee Agreements duly executed by the Borrower.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and of all documents
evidencing other
30
necessary corporate action and governmental approvals, if any, with
respect to this Agreement.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying (i) the names and true signatures
of the officers of the Borrower authorized to sign this Agreement and
the other documents to be delivered hereunder and (ii) that attached
thereto is a true and accurate copy of the by-laws of the Borrower.
(iv) A copy of a certificate of the Secretary of State of
the jurisdiction of formation of the Borrower dated reasonably near the
Effective Date, certifying (A) as to a true and correct copy of the
charter (or any similar constitutive document) of the Borrower and each
amendment thereto on file in such Secretary's office and (B) each of
the Borrower is duly incorporated and in good standing or presently
subsisting under the laws of the State of the jurisdiction of its
formation.
(h) The Administrative Agent shall have received on or before the
date of the Advances the following, each dated such day (unless otherwise
specified), in form and substance reasonably satisfactory to the Administrative
Agent and, with respect to subsection (vii) below, the Collateral Agent shall
also have received:
(i) A Note to the order of each Lender.
(ii) The Subordinated Loan Agreement and Subordination
Agreement duly executed by the Borrower and Subordinated Lender, if
applicable.
(iii) Certified copies of the resolutions of the Board of
Directors of the Borrower and each other Loan Party approving this
Agreement and each other Loan Document to which it is a party, and of
all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and each
other Loan Document to which it is a party.
(iv) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying (i) the names and true signatures
of the officers of the Borrower and each other Loan Party authorized to
sign this Agreement, each other Loan Document to which it is a party
and the other documents to be delivered hereunder and (ii) that
attached thereto is a true and accurate copy of the by-laws of the
Borrower and each other Loan Party.
(v) A copy of a certificate of the Secretary of State of
the jurisdiction of formation of the Borrower and each other Loan
Party, dated reasonably near the date of the Advances, certifying (A)
as to a true and correct copy of the charter (or any similar
constitutive document) of the Borrower and each other Loan Party and
each amendment thereto on file in such Secretary's office and (B) each
of the Borrower and each other Loan Party is duly incorporated and in
good standing or presently subsisting under the laws of the State of
the jurisdiction of its formation.
31
(vi) Favorable opinions of Xxxxx & Xxxxxxx L.L.P. with
respect to Borrower and each other Loan Party, in form and substance
mutually satisfactory to each of the Borrower's legal counsel and the
Administrative Agent's legal counsel.
(i) The Borrower shall have notified each Lender and the
Administrative Agent in writing as to the proposed date of the Advances. The
Administrative Agent shall have received evidence reasonably satisfactory to it
evidencing that the Initial Closing Date under the Purchase Agreement shall have
occurred or will occur substantially simultaneously with the making of the
Advances in compliance with all applicable laws.
(j) The Administrative Agent shall have received evidence
reasonably satisfactory to it that Borrower has received, or shall
simultaneously therewith receive, funding from Equity Investors and/or
Subordinated Lender, if applicable, in an aggregate amount equal to no less than
US$22,200,000 in the form of equity and/or Subordinated Loans (the "INITIAL
FUNDING"). Notwithstanding the foregoing, the amount of the Subordinated Loans
made with respect to the Initial Funding shall not exceed US$12,000,000 in the
aggregate.
(k) The Administrative Agent shall have received the Insurances
Memorandum duly executed by the parties thereto and evidence reasonably
satisfactory to it evidencing that the insurance arrangements of the Borrower
and its Subsidiaries satisfy the requirements of the Loan Documents, together
with evidence of such insurance and that such insurance names the Collateral
Agent as additional insured and loss payee.
(l) The Administrative Agent shall have received on or before the
date of the Advances the following, each dated such date (unless otherwise
specified), in form and substance reasonably satisfactory to the Lenders and in
sufficient copies for each Lender:
(i) The Pledge Agreement, duly executed by Equity
Investors, together with:
(A) completed requests for information, dated on
or before the date of the Advances, listing all effective
financing statements filed in New York and Washington, D.C.
that name Equity Investors as debtor, together with copies of
such other financing statements; and
(B) evidence that all action that the
Administrative Agent may deem reasonably necessary or
desirable in order to perfect and protect the first priority
liens and security interests created under the Pledge
Agreement has been taken.
(ii) The Security Agreement, duly executed by Borrower and
each other Grantor together with:
32
(A) proper financing statements, in a form
sufficient to be duly filed under the Uniform Commercial Code
of Delaware and any other applicable jurisdiction in order to
perfect and protect the first priority liens and security
interests created under the Security Agreement, covering the
Security Agreement Collateral, and the Administrative Agent
shall have received from the Borrower sufficient monies to pay
in full all filing and recording fees related thereto;
(B) evidence that all other action that the
Lenders may deem reasonably necessary or desirable in order to
perfect and protect the first priority liens and security
interests created under the Security Agreement has been taken;
and
(C) the stock certificates representing 100% of
the shares of Macquarie Aviation North America, Inc.
(iii) The Subordination Agreement duly executed by Borrower
and Subordinated Lender with respect to the Subordinated Loan
Agreement, if applicable.
(iv) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying that attached thereto are true and
complete copies of each agreement and instrument set forth on Schedule
1.01(c), together in each case with all amendments and modifications
thereto to the date hereof.
(m) The Administrative Agent shall have received irrevocable
written instructions from the Borrower authorizing the Administrative Agent to
fund the Senior Debt Service Reserve Account in an amount equal to the Senior
Debt Service Reserve Amount.
(n) The Administrative Agent shall have received (i) a copy of the
Purchase Agreement and the Escrow Agreement, each duly executed by each party
thereto, together with all schedules and exhibits to each such agreement and all
amendments, if any, to each such agreement occurring on or prior to the date of
the Advances, and (ii) evidence reasonably satisfactory to it that each of the
conditions precedent to the Initial Closing set forth in the Purchase Agreement
has been satisfied and not waived or amended, except such waivers and amendments
which could not reasonably be expected to adversely affect a lender's decision,
acting in good faith, to make an Advance pursuant to the terms of this Agreement
and the other Loan Documents. The Borrower will deliver a certificate to the
Administrative Agent on the date of the Advances confirming that, except as
disclosed in such certificate, there have been no amendments to the Purchase
Agreement or the Escrow Agreement and no waivers of the conditions precedent to
the Initial Closing set forth in the Purchase Agreement.
(o) The Borrower shall have paid all accrued fees and expenses of
the Agents and the Lenders, subject to the provisions of Section 8.04 herein.
33
(p) The Administrative Agent shall have received an annual budget
for the fiscal year 2002.
(q) The Administrative Agent shall have received a Hedge Agreement
covering the Required Hedge Amount in effect on the date of the Advances in
form and substance acceptable to the Administrative Agent and the Borrower
and if such Hedge Agreement is provided by a party other than
Administrative Agent, an agreement acceptable to Administrative Agent
whereby (a) Borrower collaterally assigns its rights under the Hedge
Agreement and (b) the Hedge Agreement is subordinated to the Senior Debt.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01 Representations and Warranties of the Borrower. The Borrower
represents and warrants on behalf of itself and the other Loan Parties as
follows:
(a) Incorporation. Each of the Loan Parties (other than the
Pledgors) and Macquarie Aviation North America, Inc., is an entity duly
organized, validly existing and in good standing under the laws of the State of
its incorporation. With respect to the Pledgors, Macquarie Specialised Asset
Management Limited is a company duly organized and validly existing under the
laws of New South Wales, Australia, and Macquarie Specialised Asset Management 2
Limited is a company duly organized and validly existing under the laws of New
South Wales, Australia.
(b) No Conflict. The execution, delivery and performance by each
Loan Party, as applicable, of this Agreement, the Notes and each other Loan
Document to which it is party, and the consummation of the transactions
contemplated hereby, are within its corporate powers, have or will have been
duly authorized by all necessary corporate action, and do not contravene (i) its
charter or by-laws (or any other similar constitutive or governing documents),
(ii) any law or (iii) any contractual restriction binding on or affecting the
Borrower.
(c) Authorizations and Consents. No authorization or approval or
other action by, and no notice to or filing with, any governmental authority or
regulatory body or (ii) any other third party is required for the due execution,
delivery and performance by any Loan Party of this Agreement or the Notes or any
other Loan Document to which it is a party, except for those authorizations,
approvals, actions, notices and filings listed on Schedule 4.01(c) hereto.
(d) Due Execution and Delivery. This Agreement and each other Loan
Document when delivered hereunder will have been, duly executed and delivered by
the Borrower. This Agreement and each other Loan Document, when delivered
hereunder will be, the legal, valid and binding obligation of the applicable
Loan Party enforceable against such Loan Party in accordance with their
respective terms except as such enforceability may be limited by bankruptcy,
insolvency or other similar laws relating to creditor's rights.
(e) Financial Statements. The Initial Closing Date Balance Sheet
and, when delivered, the Final Closing Date Balance Sheet, fairly present the
assets and liabilities of the Borrower and its Subsidiaries on a consolidated
basis, subject to the working capital adjustment
34
process set forth in Section 2.08 of the Credit Agreement as of such date. When
delivered, the Financial Statements will fairly present the financial position
of the Borrower and its Subsidiaries on a consolidated basis as of the date
referenced therein and for the periods covered thereby and have been prepared in
accordance with GAAP, subject to normal year end adjustments.
(f) Compliance with Laws. The Borrower is in compliance with all
applicable laws, ordinances, rules, regulations and requirements of Governmental
Authorities, except where noncompliance could not reasonably be expected to have
a Material Adverse Effect.
(g) No Default. No Default has occurred and is continuing under
this Agreement.
(h) Collateral. Except as set forth on Schedule 4.01(h)(i) hereto:
(i) At the time of the making of the Advances, the
Collateral Documents shall create a valid and perfected first priority
security interest in the Collateral owned by such Loan Party at the
time of or immediately following making the Advances, securing the
payment of the Secured Obligations, and all filings and other actions
necessary or desirable to perfect such security interest have been duly
taken. The respective Grantor shall be the legal and beneficial owner
of the Collateral purported to be subject to the Collateral Documents
to which it shall be a party and the subject of any Lien granted by it
pursuant to the Collateral Documents, free and clear of any Lien,
except for Permitted Liens.
(ii) After giving effect to the acquisition of the
Aviation Assets pursuant to the Purchase Agreement, each Grantor will
not own any asset or property nor will such Grantor have any right, nor
will such Grantor receive revenue from any source, that is not included
in the definition of "COLLATERAL" other than as set forth on Schedule
4.01(h)(ii) hereto.
(i) Litigation. There is no pending action, suit, investigation,
litigation or proceeding, including, without limitation, any Environmental
Action, affecting any Loan Party before any court, governmental agency or
arbitrator that (i) could reasonably be expected to have a Material Adverse
Effect or (ii) purports to affect the legality, validity or enforceability of
this Agreement or any other Loan Document or the consummation of the
transactions contemplated hereby.
(j) Margin Stock. The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System), and no proceeds of any Advance will be used to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(k) Investment Company Act. The Borrower is not an "investment
company" or a company "controlled" by a Person that is registered, or is
required to be registered, as an
35
"investment company", in each case, as such terms are defined in the Investment
Company Act of 1940, as amended.
(l) Taxes. Each Loan Party has filed all material tax returns
which are required to be filed by it in any jurisdiction and has paid all taxes
due shown on such returns or any written assessment received by it except those
contested in good faith by appropriate proceedings.
(m) ERISA Compliance. Except to the extent that any of the
following could not individually or in the aggregate reasonably be expected to
have a Material Adverse Effect:
(i) Each Benefit Plan is in compliance with the
applicable provisions of ERISA, the Internal Revenue Code and other
federal or state law. Each Benefit Plan which is intended to qualify
under Section 401(a) of the Internal Revenue Code has received a
favorable determination letter from the Internal Revenue Service and
nothing has occurred which would cause the loss of such qualification.
The Borrower and each ERISA Affiliate has made all required
contributions to any Benefit Plan subject to Section 412 of the
Internal Revenue Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the
Internal Revenue Code has been made with respect to any Plan.
(ii) There are no pending or, to the best knowledge of
Borrower after due inquiry, threatened claims, actions or lawsuits with
respect to any Benefit Plan. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any
Benefit Plan.
(iii) (A) No ERISA Event has occurred or is reasonably
expected to occur; (B) as of the date hereof, no Single Employer Plan
has any Unfunded Pension Liability; (C) neither the Borrower nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Single Employer
Plan (other than premiums due and not delinquent under Section 4007 of
ERISA); and (D) the Borrower has not incurred any withdrawal liability,
including contingent withdrawal liability, with respect to any
Multiemployer Plan pursuant to Title IV of ERISA.
(iv) Within the last five years no Single Employer Plan
has been terminated, other than in a "standard termination" as that
term is used in Section 4041(b)(1) of ERISA, nor has any Single
Employer Plan with Unfunded Pension Liabilities been transferred
outside of the "controlled group" (within the meaning of Section
400l(a)(14) of ERISA) of the Borrower or any ERISA Affiliate.
(v) Except as reflected in the Financial Model, the
Borrower has no obligation to provide any post-retirement medical or
health benefits.
(n) Environmental Compliance. Except as set forth on Schedule
4.01(n) hereto:
36
(i) The Borrower has no knowledge of any Environmental
Action and has not received written notice of any Environmental Action,
and, to the best of the Borrower's knowledge after due inquiry, no
proceeding has been instituted raising any Environmental Action against
the Borrower or any of its real properties now or formerly owned,
leased or operated or other assets, alleging any damage to the
environment or violation of any Environmental Law, except such as could
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(ii) The Borrower has no knowledge of any facts which
could reasonably be expected to give rise to any Environmental Action
or violation of Environmental Laws emanating from, occurring on or in
any way related to its real properties now or formerly owned, leased or
operated or to its other assets or their use, except such as could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(iii) The Borrower has not stored any Hazardous Materials
on its real properties now or formerly owned, leased or operated and
has not disposed of any Hazardous Materials, in each case, in a manner
contrary to any Environmental Laws that could, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(iv) No building or other real property owned leased or
operated by the Borrower contains any Hazardous Materials (except any
such Hazardous Materials used in the ordinary course and stored and
disposed of in compliance with all applicable Environmental Laws) which
could, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect; nor does there exist any release or, to the
best of the Borrower's knowledge after due inquiry, threat of release
of a Hazardous Material at any such real property which could,
individually or in the aggregate, have a Material Adverse Effect; nor
has there been any discharge or, to the best of the Borrower's
knowledge, after due inquiry threatened discharge of any Hazardous
Materials by Borrower into ground, surface or navigable water in
connection with such real property which violates any Environmental Law
and which could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; nor has the United States
or any state or local government or agency asserted or created a Lien
upon any or all of such real property as a result of any use, spill,
discharge or clean-up by Borrower of any Hazardous Materials; nor, to
the best of the Borrower's knowledge after due inquiry, has any other
act occurred at such real property which constitutes a violation of any
Environmental Law and which could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(o) Except as described in Schedule 4.01(o), the Borrower does
not, and its Subsidiaries do not, have any Debt.
37
(p) Labor Matters. There are no labor controversies pending or, to
the best of the Borrower's knowledge after due inquiry, threatened against it,
other than any labor controversies which could not reasonably be expected to
have a Material Adverse Effect. The consummation of the transactions herein and
under the other Loan Documents will not give rise to a right of termination of
renegotiation on the part of any union under any collective bargaining agreement
to which the Borrower is bound.
(q) Location of Borrower. On the date hereof, each Loan Party is
"located" (as that term is defined in Section 9-307 of the Uniform Commercial
code) at the address set forth in Schedule 4.01(q).
(r) Aviation Assets. Following the acquisition of each of the
Aviation Assets, each such Aviation Asset shall be (i) adequate for the conduct
of the business by the Borrower and its Subsidiaries, in full compliance with
each of the Material Contracts; (ii) suitable for the uses to which they are
currently employed; (iii) in good and safe operating condition, reasonable wear
and tear excepted; and (iv) not obsolete, in dangerous condition or in need of
material renewal or replacement, except for renewal or replacement in the
ordinary course of business. All of the Aviation Assets other than contracts
included in Aviation Assets (each, an "Aviation Contract" ) are listed in
Schedule 4.01(r) hereto, except those individual assets with an individual value
of less than $10,000. Schedule 4.01(r) includes all Management Contracts, FBO
Leases and all other Aviation Contracts pursuant to which the Borrower or any
Subsidiary, individually or collectively, are obligated (i) if related primarily
to FBO Airports, to spend (whether by direct payment or through rendering
services or otherwise) or have a contractual right to receive revenues in excess
of two hundred and fifty thousand Dollars ($250,000) during any twelve (12)
month period, or, (ii) if related to Management Contracts, to spend (whether by
direct payment or through rendering services or otherwise) amounts in excess of
one hundred thousand Dollars ($100,000), or have a contractual right to receive
revenues in excess of two hundred and fifty thousand Dollars ($250,000), in each
case during any twelve (12) month period. To the best of the Borrower's
knowledge after due inquiry, Schedule 4.01(r) includes all other Aviation
Contracts, other than those with an individual value of less than ten thousand
Dollars ($10,000).
(s) Material Contracts. Following the acquisition of the Aviation
Assets, each Material Contract shall be the legal, valid and binding obligation
of each of the parties thereto (or their respective successors or assigns)
enforceable against such parties in accordance with their respective terms
except as such enforceability may be limited by bankruptcy, insolvency or other
similar laws relating to creditor's rights. Upon the obtainment of the
corresponding Airport Consents, the Borrower and each of the Grantors will
acquire all Material Contract Rights with respect to the relevant Material
Contracts to which they are a party. None of the Material Contracts nor any
Material Contract Rights shall be rescinded or terminated in whole or in part.
No right or rescission, setoff, counterclaim or defense shall have been asserted
and remain outstanding with respect to any Material Contract or Material
Contract Right. None of the Material Contracts nor any Material Contract Rights
shall have been sold, transferred, assigned or pledged (unless such pledge has
been released prior to the date hereof) by Borrower or its Subsidiaries and have
not been pledged (unless such pledge has been released prior to the date hereof)
by any of their respective predecessors in interest in respect of such Material
Contracts to any Person other than the Collateral Agent for the benefit of the
Secured Parties.
38
(t) Government Actions. Except asset forth on Schedule 4.01(t),
none of the Borrower nor any of its Affiliates is aware of, or has any reason to
believe that, any applicable Governmental Authority intends to amend, terminate,
rescind, condemn, relocate or abandon any of the Material Contracts.
ARTICLE V
COVENANTS OF THE BORROWER
5.01 Affirmative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, compliance with ERISA and
Environmental Laws except where noncompliance could not reasonably be expected
to have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, prior to the date on which interests or
penalties attach thereto, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property; provided, however, that
neither the Borrower nor any of its Subsidiaries shall be required to pay or
discharge any such tax, assessment, charge or claim that is being contested in
good faith and by proper proceedings and as to which appropriate reserves are
being maintained, unless and until any Lien resulting therefrom attaches to its
property and becomes enforceable by its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance meeting the requirements of the Insurances
Memorandum.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that the Borrower and its Subsidiaries may consummate any transaction
permitted under Section 5.02(b) and provided further that neither the Borrower
nor any of its Subsidiaries shall be required to preserve any right or franchise
if the Board of Directors of the Borrower or such Subsidiary shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Borrower or such Subsidiary, and that the loss thereof is not
disadvantageous in any material respect to the Borrower, such Subsidiary or the
Lenders.
(e) Visitation Rights. At any reasonable time and from time to
time, permit the Administrative Agent or any of the Lenders or any agents or
representatives thereof, upon reasonable advance notice to the Borrower and its
relevant Subsidiary, to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Borrower and
any of its Subsidiaries, and to discuss the affairs, finances and accounts of
the Borrower and any of its Subsidiaries with any of their officers or directors
and with their independent certified public accountants.
39
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the
Borrower and each such Subsidiary in accordance with GAAP.
(g) Maintenance of Properties, Etc. Operate, maintain and manage,
and cause each of its Subsidiaries to operate, maintain and manage, all of its
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted, in accordance with
any applicable Material Contract and in accordance with applicable laws
(including, without limitation, Environmental Laws), except where noncompliance
could not reasonably be expected to have a Material Adverse Effect.
(h) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates on terms that are fair and reasonable and
no less favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate.
(i) Governmental Approvals. Obtain and maintain, and cause each of
its Subsidiaries to obtain and maintain, all governmental approvals and licenses
that are required of the Borrower or its Subsidiaries for the validity or
enforceability of the Loan Documents and the operation of the Material
Contracts, except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
(j) Use of Proceeds. Use the proceeds of the Advances only as
described Section 2.13.
(k) Auditor. Appoint and maintain the appointment of a nationally
or internationally recognized independent public accountant.
(l) Maintenance of Material Contracts. (x) Perform and observe,
and cause each of its Subsidiaries to perform and observe, the terms and
provisions of the applicable Material Contract to be performed or observed by
the Borrower or each applicable Subsidiary and (y) enforce or cause each
Subsidiary, as applicable, to enforce its rights under the applicable Material
Contract in accordance with its applicable terms. Borrower shall notify the
Administrative Agent in writing within five (5) Business Days following
Borrower's receipt of written notice as to the potential termination of any
Material Contract.
(m) Senior Debt Service Coverage Ratio. Maintain, as of each SDSCR
Determination Date, a Historic Semi-Annual SDSCR of no less than 1.25 to 1.00.
(n) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within sixty
(60) days after the end of each of the first three quarters of each
fiscal year of the Borrower and its Subsidiaries, a Consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of
such quarter and Consolidated statements of income and cash flows of
the Borrower and its Subsidiaries for the period commencing at the end
of the previous fiscal year and ending with the end of such quarter,
duly certified
40
(subject to year-end audit adjustments) by a Responsible Officer of the
Borrower as having been prepared in accordance with GAAP and
accompanied by a certificate of the Borrower's Responsible Officer
stating to the best of his or her knowledge, after due inquiry, whether
any event has occurred which constitutes an Event of Default, and if
so, stating the facts with respect thereto;
(ii) as soon as available and in any event within 120 days
after the end of each fiscal year of the Borrower, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries,
containing Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal year and Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for such fiscal year, in each case accompanied by an
opinion from a nationally or internationally recognized independent
public accountants and accompanied by a certificate of the Borrower's
Responsible Officer stating to the best of his or her knowledge after
due inquiry, whether any event has occurred which constitutes an Event
of Default, and if so, stating the facts with respect thereto;
(iii) as soon as available and in any event no later than
120 days after the end of each fiscal year of the Borrower, an annual
report summarizing the operations of the Borrower and its Subsidiaries
for the past fiscal year;
(iv) as soon as possible and in any event within five (5)
Business Days after the Borrower has knowledge of, or should have known
of, the occurrence of each Default continuing on the date of such
statement, a statement of a Responsible Officer of the Borrower setting
forth reasonable details of such Default and the action that the
Borrower has taken and proposes to take with respect thereto;
(v) as soon as available and in any event no later than
60 days before the end of each fiscal year, an operating budget for the
fiscal year following such fiscal year then ending and on an annual
basis for each fiscal year thereafter through the fiscal year in which
the Maturity Date occurs and any further information or details with
respect to any such budget as the Administrative Agent or any Lender
may reasonably request;
(vi) as soon as available and in any event no later than
60 days before the end of each fiscal year, certificates from its
insurers or insurance agents evidencing that the insurance required to
be in effect pursuant to Section 5.01(c) is in effect;
(vii) copies of all amendments and modifications to all
Material Contracts no later than twenty (20) days after such amendment
or modification has been made;
41
(viii) promptly but in any event within 5 days of attaining
knowledge thereof, a statement of a Responsible Officer of the Borrower
advising of the potential loss of any of Material Contract;
(ix) copies of all other formal written notices sent or
received by the Borrower or any of its Subsidiaries pursuant to any
Material Contract as soon as practicable after such formal written
notice is sent or received;
(x) promptly after the commencement thereof, notice of
(A) all actions and proceedings before any court, governmental agency
or arbitrator affecting the Borrower or any of its Subsidiaries of the
type described in Section 4.01(i) and (B) all actions and proceedings
before any court, governmental agency or arbitrator affecting any
Material Contract;
(xi) upon the occurrence of any ERISA Event affecting the
Borrower or any ERISA Affiliate (but in no event more than 20 days
after such event); a notice and description of such event;
(xii) promptly after the occurrence thereof notice of: (A)
any known release or threat of release of any Hazardous Materials at or
from any site owned or leased by the Borrower or by any of its
Subsidiaries that, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect, and (B) any known
incurrence of any expense or loss by any governmental authority in
connection with the assessment, containment or removal of any Hazardous
Material for which expense or loss the Borrower or any of its
Subsidiaries may be liable and which expense or loss, individually or
in the aggregate, could reasonably be expected to have a Material
Adverse Effect;
(xiii) such other information respecting the Borrower or any
of its Subsidiaries as the Lenders may from time to time reasonably
request; and
(xiv) promptly after receipt by Borrower and/or any of its
Subsidiaries, of statement of working capital with respect to AMPORTS
Aviation Group in accordance with the Purchase Agreement.
(o) Ownership and Majority Control. Unless otherwise approved in
writing by the Administrative Agent, maintain at all times 100% ownership
interest in each of the Grantors and in Macquarie Aviation North America, Inc.,
and a Majority Control over each Grantor and Macquarie Aviation North America,
Inc.
(p) Hedge Agreement. Maintain in full force and effect one or more
Hedge Agreements covering not less than the Required Hedge Amount in compliance
with the requirements of Section 3.01(q).
(q) Pro Forma Financial Statement. Deliver to the Administrative
Agent a pro forma balance sheet (the "FINAL CLOSING DATE BALANCE SHEET") on a
consolidated basis of the Borrower and its Subsidiaries as of the earlier of (i)
the last Subsequent Closing Date or (ii) the Outside Date, no later than such
date prepared based on the June 30 Financial Statements and the
42
Statements of Working Capital delivered by Seller pursuant to Section 2.08 of
the Purchase Agreement, adjusting for the Advances and the Initial Funding,
subject to the working capital adjustment process provided in Section 2.08 of
the Purchase Agreement. Deliver to the Administrative Agent within 45 days of
the earlier of the last Subsequent Closing Date or the Outside Date a
Consolidated balance sheet of the Borrower and its Subsidiaries as of such
applicable date and Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for the period commencing at the Initial Closing
Date and ending with the date of the Consolidated balance sheet (collectively,
the "FINANCIAL STATEMENTS").
(r) Consents by the Airport Authorities. Use, and cause its
Subsidiaries to use, commercially reasonable efforts to obtain, or cause each
relevant Subsidiary to obtain, from each applicable Governmental Authority,
consents to the assignment for security for each and all of the Airports (except
as provided in Schedule 5.01(r)), in order to create a valid perfected first
priority security interest in each of the Material Contracts for such Airports.
Notwithstanding the foregoing, Borrower and/or its Subsidiaries shall not be
required to make more than one (1) formal request for such consent from each
applicable Governmental Authority. As soon as practicable thereafter, but in no
event later than fifteen days, the Borrower shall deliver to the Administrative
Agent any and all agreements, documents, instruments and writings deemed
reasonably necessary by the Administrative Agent, or as any Agent may reasonably
request from time to time in its sole discretion to evidence, perfect, or
protect the Secured Parties' rights and security interests over the Material
Contracts in accordance with such consents. The Borrower hereby authorizes each
of the Agents to execute, deliver and file any and all of such agreements,
documents, instruments and writings.
(s) Subsequent Closings. On each Subsequent Closing, the Borrower
shall confirm in writing that the representations and warranties contained in
Section 4.01(a), 4.01(b), 4.01(f), 4.01(g), 4.01(h), 4.01(i) but only with
respect to the relevant Aviation Assets being acquired in such Subsequent
Closing, 4.01(l), 4.01(m), 4.01(n), 4.01(p) but only with respect to the
relevant Aviation Assets being acquired in such Subsequent Closing, 4.01(r),
last sentence of 4.01(s) but only with respect to the relevant Aviation Assets
being acquired in such Subsequent Closing, and 4.01(t) but only with respect to
the relevant Aviation Assets being acquired in such Subsequent Closing, are true
and correct before and after giving effect to such Subsequent Closing, with the
same effect as though such representations and warranties had been made on and
as of the date of such Subsequent Closing. Notwithstanding anything to the
contrary contained herein, a breach of any of the representations or warranties
to be made pursuant to this Section 5.01(s) shall not be deemed an Event of
Default and the only remedy of the Lenders with respect to any such breach shall
be Borrower's obligation to make a prepayment of a portion of the Advances in
accordance with Section 2.08(f).
5.02 Negative Covenants. So long as any Advance shall remain unpaid
or any Lender shall have any Commitment hereunder, the Borrower will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to any of
its properties, whether now owned or hereafter acquired, or assign or permit any
of its Subsidiaries to assign any right to receive income, other than:
43
(i) Permitted Liens;
(ii) Liens existing on Initial Closing or Subsequent
Closing Dates as described on Schedule 5.02(c) hereto.
(iii) Liens securing Debt permitted under Section
5.02(c)(iii); provided that any such Lien is limited to the specific
asset being financed;
(iv) Liens arising in connection with any letters of
credit issued with respect to any Material Contracts and/or insurance
policies that are required to be maintained by Borrower and/or its
Subsidiaries pursuant to the terms thereof; and
(v) the replacement, extension or renewal of any Lien
permitted above upon or in the same property theretofore subject
thereto or the replacement, extension or renewal (without increase in
the amount or change in any direct or contingent obligor) of the Debt
secured thereby.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person, or permit any of its Subsidiaries
to do so.
(c) Debt. Create, incur, guaranty, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, guaranty, assume or suffer to
exist, any Debt other than:
(i) The Advances;
(ii) Subordinated Loans, provided, however, the aggregate
amount of all Subordinated Loans, including any portion of the Initial
Funding, shall not exceed US$12,000,000 in the aggregate and the entire
amount of the Subordinated Loans shall at all times be subject to the
Subordinated Loan Agreement and the Subordination Agreement in all
respects;
(iii) Debt used to refinance the Senior Debt in whole or in
part (the "Replacement Senior Debt"), provided that unless the Senior
Debt is repaid in full:
(A) Replacement Senior Debt shall not replace
Subordinated Loans;
(B) Replacement Senior Debt shall not exceed the
principal amount of the Senior Debt prepaid;
(C) The Replacement Senior Debt shall have an
equal or greater weighted average life to maturity than, and a
final maturity date which is no earlier than, that of the
Senior Debt being replaced;
44
(D) No Default shall have occurred and be
continuing or shall arise as a result of the issuing of the
Replacement Senior Debt;
(E) The annual average Projected SDSCR and
minimum annual Projected SDSCR for the life of the Senior Debt
and Replacement Senior Debt after giving effect to such
refinancing shall not be less than the annual average
Projected SDSCR and minimum annual Projected SDSCR prior to
giving effect to such refinancing all as based on the
Financial Model;
(F) The Lenders shall have the right of first
refusal to provide such Replacement Senior Debt upon the same
(or more favorable to Borrower) terms and conditions as are
set forth in a term sheet executed by any third party lender
and delivered to the Lenders; provided that, the Lenders shall
have 10 business days from the date of delivery of such
third-party lender's term sheet to exercise their right of
first refusal; and
(G) The lenders providing the Replacement Senior
Debt must enter into collateral sharing and intercreditor
agreements satisfactory to the Lenders in their sole
discretion.
(iv) Debt used to refinance the Subordinated Loans in
whole or in part (the "REPLACEMENT SUBORDINATED DEBT"), provided that
unless the Senior Debt is repaid in full:
(A) The aggregate amount of Replacement
Subordinated Debt shall not exceed US$12,000,000;
(B) The Lenders providing the Replacement
Subordinated Debt shall enter into a subordination agreement
in favor of the Secured Parties with terms at least as
favorable to the Secured Parties as the Subordination
Agreement; and
(C) No Default shall have occurred and be
continuing as a result of the issuing of the Replacement
Subordinated Debt.
(v) Debt incurred in the ordinary course of business for
the deferred purchase price of property, conditional sale obligations
or obligations under title retention agreements, in each case where the
maturity of such Debt does not exceed the anticipated useful life of
the asset being financed, in a principal amount not to exceed in the
aggregate US$1,000,000 at any time outstanding.
(vi) Unsecured Debt incurred for working capital purposes
in a principal amount not to exceed in the aggregate US$1,000,000 at
any time outstanding.
45
(vii) Debt incurred in connection with any letters of
credit issued with respect to any Material Contracts and/or insurance
policies that are required to be maintained by Borrower and/or its
Subsidiaries pursuant to the terms thereof.
(viii) Debt incurred in connection with the Hedge Agreements
pursuant to Sections 3.01(p) and 5.01(p) herein.
(ix) Loans by Borrower to any of its Subsidiaries, loans
by any of Borrower's Subsidiaries to Borrower and/or loans among any of
Borrower's Subsidiaries (each of such loans being an "INTERCOMPANY
LOAN" and collectively "INTERCOMPANY LOANS"), provided any such loans
(other than loans made by MAvNA) shall be pledged to the Collateral
Agent for the benefit of the Secured Parties pursuant to the Security
Agreement and any loans made by MAvNA to Borrower and/or Borrower's
Subsidiaries shall be subordinated to the Senior Debt pursuant to a
subordination agreement in favor of the Lenders on terms comparable to
the Subordination Agreement.
(d) Investments. Make or hold any Investment, or permit any
Subsidiary to make or hold any Investment, in any Person other than:
(i) Investments by the Borrower in any Grantor;
(ii) Investments in Cash Equivalents;
(iii) loans and advances to employees in the ordinary
course of business of the Borrower or such Subsidiary in an aggregate
principal amount outstanding at any time not to exceed US$40,000;
(iv) accounts receivable arising in the ordinary course of
business; and
(v) Intercompany Loans.
(e) Lease Obligations. Create, incur, assume or suffer to exist,
or permit any of its Subsidiaries to create, incur, assume or suffer to exist,
any obligations as lessee (i) for the rental or hire of real or personal
property in connection with any sale and leaseback transaction, or (ii) for the
rental or hire of other real or personal property of any kind under leases or
agreements to lease having an original term of one year or more that would cause
the direct and contingent liabilities of the Borrower and its Subsidiaries, on a
Consolidated basis, in respect of all such obligations to exceed in the
aggregate at any time US$500,000 payable in any period of 12 consecutive months
other than the FBO Leases.
(f) Change in Business. Engage, or permit any of its Subsidiaries
to engage, in any business other than the ownership, operation, maintenance,
development and/or acquisition of aviation businesses, including, without
limitation, the aviation business activities engaged in with respect to the FBO
Leases and Management Contracts and other activities related thereto.
46
(g) Amendment of Corporate Documents. Amend, or permit any of its
Subsidiaries to amend, the constitutive documents of the Borrower or such
Subsidiaries, as the case may be, in any respect that could reasonably be
expected to have a Material Adverse Effect.
(h) FBO Leases/Management Contracts/Material Contracts. Terminate,
amend, extend or modify, or permit any of its Subsidiaries to terminate, amend,
extend or modify, the FBO Leases, Management Contracts or other Material
Contracts, unless, in the case of an amendment or modification, such amendment
or modification could not reasonably be expected to have a Material Adverse
Effect, without the prior written consent of the Administrative Agent, such
consent not to be unreasonably withheld or delayed.
(i) Sale of Assets. Sell, lease, transfer or otherwise dispose of,
or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose
of, any assets of any kind, except sales, transfers or other dispositions in the
ordinary course of its business, including sales of obsolete and/or worn out
equipment;
(j) Restricted Payments.
(i) Declare or make, or permit any of its Subsidiaries
(other than its wholly-owned Subsidiaries) to declare or make, any
dividend payment or other distribution of assets, properties, cash,
rights, obligations or securities on account of any Equity Interests;
(ii) Make, or permit any of its Subsidiaries to declare or
make, any payments with respect to the Subordinated Loans or
Replacement Subordinated Debt, if applicable, or make, or permit any of
its Subsidiaries to declare or make, any redemption, repurchase or
defeasance of any such Debt; or
(iii) Purchase, redeem, retire, defease or otherwise
acquire for value any Equity Interests in or any warrants, rights or
options to acquire any such Equity Interests, now or hereafter
outstanding, or return any capital to its Equity Interest holders, or
reduce its capital or permit any of its Subsidiaries (other than its
wholly-owned Subsidiaries) to do so (collectively, the payments
described in clauses (i) through (iii) above being "Restricted
Payments"); provided, however, that the Borrower may make Restricted
Payments if the following conditions are satisfied:
(A) no Default shall have occurred and be
continuing and the making of the Restricted Payment will not
result in a Default;
(B) as of the SDSCR Determination Date, the
Historic Semi-Annual SDSCR is greater than 1.625 to 1.00;
(C) the Senior Debt Service Reserve Account is
funded in an amount equal to the Senior Debt Service Reserve
Amount;
(D) the Senior Debt Service Account is funded in
an amount equal to the Required Amount;
47
(E) with respect to the Subordinated Loans or
Replacement Subordinated Debt, if applicable, Borrower may
make interest payments only; no portion of any principal
amount of the Subordinated Loans or Replacement Subordinated
Debt may be paid while any portion of the Senior Debt is
outstanding;
(F) with respect to distributions to Equity
Investors, all current period interest and all capitalized
interest due and payable with respect to the Subordinated
Loans or Replacement Subordinated Debt, if applicable, must be
satisfied prior to making any distributions to the Equity
Investors in respect of their Equity Interests in Borrower.
(k) [Intentionally Omitted]
(l) Environmental Violations. Store, transport or dispose of, or
permit any of its Subsidiaries to store, transport or dispose of, any Hazardous
Material on or from any site owned or leased by the Borrower or any such
Subsidiary, if such storage, transport or disposal could reasonably be expected
to have a Material Adverse Effect.
(m) Dividend and Other Payment Restrictions. Permit any of its
Subsidiaries to create or enter into any restriction on their ability to pay
dividends or make other distributions with respect to its Equity Interests.
(n) Capital Expenditures. Make or incur, or permit any of its
Subsidiaries to make or incur, any Capital Expenditure in excess of 125% of the
annual amounts set forth in the Financial Model with respect to Capital
Expenditures without the consent of the Administrative Agent which consent shall
not be unreasonably withheld or delayed. In addition, the unused portion of any
amounts allocated to Capital Expenditures under the Financial Model for any year
shall be carried forward to the next succeeding year and shall increase the
amounts allocated to Capital Expenditures under the Financial Model in such
succeeding year by any such amount.
(o) Outside Date. The Borrower shall not extend or modify the
Outside Date without the prior written consent of the Administrative Agent, such
consent not to be unreasonably withheld or delayed.
ARTICLE VI
EVENTS OF DEFAULT
6.01 Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) Borrower shall fail to pay any principal or any interest on
any Advance or make any other payment of other amounts payable under the
Loan Documents, in each case, within five Business Days after the same
becomes due and payable; or
(b) Any representation or warranty made or deemed made by any Loan
Party under any Loan Document to which it is a party (other than in
connection with Section 5.01(s)) shall prove to have been incorrect in any
material respect when made or deemed
48
made; provided that if such representation or warranty is susceptible of
cure, it shall not constitute an "Event of Default" unless it is not cured
within 60 days after the Borrower acquires actual knowledge thereof; or
(c) Except as provided in (a) and (b) above, if any Loan Party
shall fail to perform or observe any term, covenant or agreement contained
any Loan Document to which it is a party (other than in connection with
Section 5.01(s)), if such failure shall remain unremedied for thirty (30)
days after written notice thereof shall have been given to Borrower by the
Administrative Agent or any Lender unless such failure can not be cured
within such thirty (30) days and Borrower has commenced such cure within
said thirty (30) days and thereafter diligently pursues such cure to
completion which shall occur no later than 60 days from the date of the
written notice; or
(d) Any event shall occur or condition shall exist under any
agreement or instrument relating to any Debt of the Borrower or any of its
Subsidiaries and shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt, if the
effect of such event or condition is to cause the acceleration of the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof; or any payment
required under any such Debt shall not be made when due (after the
expiration of applicable grace periods thereunder); or
(e) The Borrower or any of the other Loan Parties shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against the Borrower or any of the other Loan Parties seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not instituted
by it), either such proceeding shall remain undismissed or unstayed for a
period of 60 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against,
or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur;
or the Borrower or any other Loan Party shall take any corporate action to
authorize any of the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
US$200,000 shall be rendered against the Borrower or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; provided, however, that any such judgment or order shall
49
not be an "Event of Default" under this Section 6.01 (f) if and for so long
as the amount of such judgment or order is covered by a valid and binding
policy of insurance between the defendant and the insurer covering payment
thereof; or
(g) Any Collateral Document after delivery thereof shall for any
reason (other than pursuant to the terms thereof) cease to create a valid
and perfected first priority lien on and security interest in the
Collateral purported to be covered thereby; or
(h) Any material provision of any of the Loan Documents shall be
canceled, terminated, declared by a competent court having jurisdiction to
be null and void or shall otherwise cease to be valid and binding, or the
Borrower or any other Loan Party shall deny any further liability or
obligation thereunder; or
(i) The Borrower or any of its ERISA Affiliates shall incur, or
shall be reasonably likely to incur liability which individually or in the
aggregate could reasonably likely have a Material Adverse Effect as a
result of one or more of the following: (i) the occurrence of any ERISA
Event; or (ii) the occurrence of a non-exempt prohibited transaction; or
(j) A default, breach, non-compliance, loss, termination,
abandonment or adverse event (in each case after giving effect to any
applicable notice and cure periods and provided that any such delivery of
such notice in and of itself shall not be deemed to be an "event" for
purposes of this Section 6.01(j)) with respect to any Material Contract if
such default, breach, non-compliance, loss, termination, abandonment or
adverse event could be reasonably expected to have a Material Adverse
Effect and, if susceptible of cure or remedy, remains unremedied for thirty
(30) days after written notice thereof shall have been given to Borrower by
the Administrative Agent or any Lender unless such default, breach,
non-compliance, loss, termination, abandonment or event cannot be cured
within such thirty (30) days and Borrower has commenced such cure within
said thirty (30) days and thereafter diligently pursues such cure to
completion which shall occur no later than 60 days from the date of the
written notice; or
(k) The Equity Investors and/or its Affiliates fail to maintain at
least a 51% direct or indirect ownership interest in Borrower or a Majority
Control over the Borrower, if such failure shall remain unremedied for
thirty (30) days after written notice thereof shall have been given to
Borrower by the Administrative Agent or any Lender unless such failure can
not be cured within such thirty (30) days and Borrower has commenced such
cure within said thirty (30) days and thereafter diligently pursues such
cure to completion which shall occur no later than 60 days from the date of
the written notice.
then and in every such event, and at any time thereafter during the
continuance of such Event of Default, the Administrative Agent may, and at the
request of the Required Lenders shall, by written notice to the Borrower and
each Lender, take one or more of the following actions:
(a) reduce the Commitments to zero and (b) declare the Advances to be forthwith
due and payable, whereupon the Advances shall become forthwith due and payable
both as to principal
50
and interest together with all other amounts payable by the Borrower under this
Agreement and the other Loan Documents which may be due or accrued and unpaid,
without presentment, demand, protest or any other notice of any kind, all of
which are expressly waived; provided, however, that if any of the Events of
Default set forth in paragraph (e) of this Section 6.01 shall occur with respect
to the Borrower, then without any notice to the Borrower or any other act by the
Administrative Agent or any other Person (i) the Commitments shall be
immediately reduced to zero and (ii) the Advances shall become forthwith due and
payable, all without presentment, demand, protest or notice of any kind, all of
which are expressly waived. In the event of a declaration by the Administrative
Agent pursuant to clause (b) above, the Administrative Agent may enforce its
rights hereunder and under any other instrument or agreement delivered in
connection herewith and take any other action to which it is entitled hereunder,
thereunder, or by law, whether for the specific performance of any covenant or
agreement contained in this Agreement, in any such instrument or agreement or to
enforce payment as provided herein, therein or by law.
ARTICLE VII
THE AGENT
7.01 Authorization and Action. Each Lender hereby appoints and
authorizes each Agent to take such action as such Agent on its behalf and to
exercise such powers and discretion under this Agreement and the other Loan
Documents as are delegated to such Agent by the expressed terms hereof and
thereof, together with, in the case of the Administrative Agent, such powers and
discretion as are reasonably incidental thereto. As to any matters not expressly
provided for by this Agreement or the other Loan Documents, the Agents shall not
be required to exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that neither Agent shall be required to take any action that
exposes such Agent to liability or that is contrary to this Agreement, the other
Loan Documents or applicable law. In performing its duties under this Agreement
or the other Loan Documents, the Collateral Agent shall be entitled to act or
refrain from acting in accordance with instructions of the Administrative Agent
(and shall be fully protected in so acting or refraining from acting) and such
instructions shall be binding upon all Lenders and all holders of the Notes.
Each Agent agrees to give to each Lender prompt notice of each notice given to
it by the Borrower pursuant to the terms of this Agreement and the other Loan
Documents.
7.02 Agents' Reliance, Etc. Neither Agent nor any of their
respective shareholders, directors, officers, agents or employees shall be
liable for any action taken, suffered or omitted to be taken by it or them under
or in connection with the preparation, delivery, execution, administration or
amendment of this Agreement and the other Loan Documents, except for its or
their own gross negligence or willful misconduct, as finally determined by a
court of competent jurisdiction. Without limitation of the generality of the
foregoing, each Agent: (i) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 8.07; (ii) may consult
with legal counsel (including counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable
51
for any action taken, suffered or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement and the other Loan Documents;
(iv) shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement or the
other Loan Documents on the part of the Borrower or to inspect the property
(including the books and records) of the Borrower; (v) shall not be responsible
to any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any lien
or security interest created or purported to be created under or in connection
with, this Agreement or any other instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect of this Agreement
or the other Loan Documents by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
In addition to the other rights of the Collateral Agent hereunder, the
Collateral Agent shall have all of the rights, remedies, indemnifications and
protections set forth in the Security Agreement as if those provisions were
included in this Agreement.
7.03 WestLB and Affiliates. With respect to its Commitment, the
Advance made by it and the Note issued to it, WestLB shall have the same rights
and powers under this Agreement and the other Loan Documents as any other Lender
and may exercise the same as though it were not the Administrative Agent; and
the term "Lender" or "Lenders" shall, unless otherwise expressly indicated,
include WestLB in its individual capacity. WestLB and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if WestLB
were not the Administrative Agent and without any duty to account therefor to
the Lenders.
7.04 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agents or any other Lender and based
on the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement and the other Loan Documents.
7.05 Indemnification. The Lenders agree to indemnify each Agent and
each of their respective officers, directors, employees, representatives and
agents (each, an "INDEMNIFIED PARTY") (to the extent not reimbursed by the
Borrower), ratably according to the respective principal amounts of the Notes
then held by each of them (or if no Notes are at the time outstanding or if any
Notes are held by Persons that are not Lenders, ratably according to the
respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, settlements, injuries (to persons, property or natural
resources) or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against such Agent in any way relating to or
arising
52
out of this Agreement and the other Loan Documents or any action taken, suffered
or omitted by such Indemnified Party under this Agreement and the other Loan
Documents (collectively, the "INDEMNIFIED COSTS"), provided that no Lender shall
be liable for any portion of the Indemnified Costs resulting from such
Indemnified Party's gross negligence or willful misconduct, as finally
determined by a court of competent jurisdiction. Without limitation of the
foregoing, each Lender agrees to reimburse each Indemnified Party promptly upon
demand for its ratable share of any out-of-pocket expenses (including counsel
fees) incurred by such Indemnified Party in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement and the
other Loan Documents, to the extent that such Indemnified Party is not
reimbursed for such expenses by the Borrower. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05
applies whether any such investigation, litigation or proceeding is brought by
the Administrative Agent, any Lender or a third party. The costs and expenses
incurred in enforcing this right of indemnification shall be paid by the
Lenders. Anything to the contrary notwithstanding, in no event shall the
Collateral Agent be liable for special, punitive, indirect, consequential or
incidental loss or damage of any kind whatsoever (including but not limited to
lost profits) arising out of this Agreement or the other Loan Documents, even if
the Collateral Agent has been advised of the likelihood of such loss or damage.
The obligations of the Lenders contained in this Section 7.05 shall survive the
termination of this Agreement and the earlier resignation or removal of the
Collateral Agent.
7.06 Successor Agents. Each Agent may resign from its role as Agent
under this Agreement and the other Loan Documents at any time by giving written
notice thereof to the Lenders, the other Agent and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a Person organized under the
laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least US$250,000,000. Upon the acceptance of
any appointment as Agent by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement and the other Loan Documents.
ARTICLE VIII
MISCELLANEOUS
8.01 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Note or any other Loan Document to which the Borrower is a
party, nor consent to any departure by the Borrower therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Required Lenders (and by the Borrower, if an amendment to this Agreement, the
Note or any other Loan Document) and then such waiver or
53
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall, unless in writing and signed by all the Lenders, do any of the
following: (a) increase the Commitments of the Lenders or subject the Lenders to
any additional obligation, (b) reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, (c) postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, (d) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Notes, or the number of Lenders,
that shall be required for the Lenders or any of them to take any action
hereunder, (e) release any material portion of the Collateral or (f) amend this
Section 8.01; and provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note and provided further that
no amendment, waiver or consent shall, unless in writing and signed by the
Collateral Agent, affect the rights, indemnification or duties of the Collateral
Agent under this Agreement or any Note.
8.02 Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including facsimile communication) and mailed
- return receipt requested or delivered by a nationally recognized courier
service, if to the Borrower, at its address at x/x Xxxxxxxxx Xxxxx Xxxxxxx Ltd.,
8th Floor, 000 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxx X0X 0X0, Attention: Xxxxxx
Xxxx, Associate Director with a copy to Xxxxx & Xxxxxxx, XX, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxx, Telecopier (000) 000-0000; if
to any Initial Lender, at its Domestic Lending Office specified opposite its
name on Schedule I hereto; if to any other Lender, at its Domestic Lending
Office specified in the Assignment and Acceptance pursuant to which it became a
Lender; if to the Administrative Agent, at its address at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Global Structured
Finance/Infrastructure with a copy to Xxxxxx, Xxxx & Xxxxxxxx LLP, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Ignacion Foncillas, Telecopier (212)
351-5223; and if to the Collateral Agent, at its address at c/o Citibank Agency
& Trust Services, 000 Xxxx Xxxxxx, 14th Floor, Xxxx 0, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Agency and Trust Department, Telecopier (000) 000-0000 or, as to the
Borrower or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Administrative Agent. All such notices
and communications shall, when mailed, delivered by a nationally recognized
courier service or faxed, be effective (i) when mailed, five Business Days after
deposit in the mail, (ii) when delivered by a nationally recognized courier
service, two Business Days after delivery to such courier and (iii) when faxed,
when dispatched with a confirmed transmission report, respectively, except that
notices and communications to the Administrative Agent pursuant to Article II,
III or VII shall not be effective until actually received by the Agent and all
notices to the Collateral Agent shall not be deemed received unless and until
the Collateral Agent has actually received such notice. Delivery by facsimile of
an executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as of delivery of a manually executed counterpart
thereof.
8.03 No Waiver; Remedies. No failure on the part of any Lender or
the Administrative Agent to exercise, and no delay in exercising, any right
hereunder or under any
54
Notes shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
8.04 Costs and Expenses. (a) The Borrower agrees to pay, on the
earlier of (i) the date of the Advances or (ii) the termination of this
Agreement, all reasonable out-of-pocket costs and expenses of the Agents in
connection with the preparation, execution and delivery of this Agreement, the
Notes, the other Loan Documents and the other documents to be delivered
hereunder based upon written statements evidencing such costs and expenses;
provided that with respect to the Administrative Agent such costs and expenses
shall be limited to US$175,000 if the date of the Advances has occurred on or
before October 17, 2002. The Borrower further agrees to pay on demand all
reasonable costs and expenses of each Agent and the Lenders, if any (including,
without limitation, reasonable counsel fees and expenses), in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of this Agreement, the Notes and the other documents to be delivered hereunder,
and any amendment or waiver hereof requested by the Borrower, including, without
limitation, reasonable fees and expenses of counsel for such Agent in connection
with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless each Agent
and each Lender and each of their respective Affiliates, officers, directors,
employees, agents and advisors (each, an "INDEMNIFIED PARTY") from and against
any and all claims, damages, losses, injuries (to persons, property or natural
resources), liabilities and expenses (including, without limitation, reasonable
fees and expenses of counsel which shall include only one counsel, which counsel
shall be counsel selected by, and counsel for, the Administrative Agent, unless
(i) any of the other Indemnified Parties shall reasonably determine that a
conflict of interest exists such that counsel for the Administrative Agent is
precluded by applicable requirements of law or by standards of conduct from
representing the Administrative Agent and the other Indemnified Parties as a
group, in which case the Borrower hereby agrees to pay, upon demand, all
reasonable and properly documented out-of-pocket fees and expenses of the
minimum number of counsel necessary in the reasonable judgment of the
Indemnified Parties to provide the Administrative Agent and each other
Indemnified Party with appropriate legal representation in connection with the
enforcement of their respective rights under this Agreement and the other Loan
Documents) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith)
(i) the Loan Documents, any of the transactions contemplated therein, or the
actual or proposed use of the proceeds of the Advances or (ii) the actual or
alleged presence of Hazardous Materials resulting from the acts or omissions of
the Borrower on any property owned or leased (as lessor or lessee) or otherwise
occupied or used by the Borrower or any of its Affiliates or any Environmental
Action relating in any way to the Borrower or any of its Affiliates, except to
the extent such claim, damage, loss, liability or expense results from such
Indemnified Party's gross negligence or willful misconduct, as determined in a
final, non-appealable judgment by a court of competent jurisdiction. In the case
of an investigation, litigation, or other proceeding to which the indemnity in
this Section 8.04(b) applies, such indemnity shall be effective whether or not
the transactions contemplated hereby are consummated. Promptly after receipt by
an Indemnified Party of notice of the commencement of any action or proceeding
involving a claim referred to above, such Indemnified Party shall (a),
55
promptly give notice to Borrower of the commencement of such action or
proceeding; provided, however, that the failure of such Indemnified Party to
give such notice shall not (i) relieve Borrower of its obligations under this
subsection (b), unless and to the extent that such failure results in the
forfeiture of rights or defenses and Borrower incurs an increased obligation to
such Indemnified Party on account of such failure, and (ii) in any event relieve
Borrower from any liability with respect to such Indemnified Party which
Borrower may have otherwise on account of this Agreement or any other Loan
Document.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.07, acceleration of the
maturity of the Notes pursuant to Section 6.01 or for any other reason, the
Borrower shall, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses,
costs or expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
(d) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in Sections 2.09, 2.12 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Note, the
termination of this Agreement and the earlier resignation or removal of the
Collateral Agent.
8.05 Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request specified
by Section 6.01 to authorize the Administrative Agent to declare the Notes due
and payable pursuant to the provisions of Section 6.01, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement and the Note held by such Lender, whether or not such
Lender shall have made any demand under this Agreement or such Note and although
such obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower after any such set-off and application, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Lender under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Lender and its Affiliates may have.
8.06 Binding Effect. This Agreement shall become effective (other
than Section 2.01, which shall only become effective upon satisfaction of the
conditions precedent set forth in Section 3.01) when it shall have been executed
by the Borrower and each of the Agents and when the Administrative Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, each Agent and each Lender and their respective successors and
assigns.
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8.07 Assignments and Participations.
(a) Each Lender may assign to one or more Persons all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of the Advance owing to it and the Note held by
it); provided, however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under this
Agreement, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the Advance
of the assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than US$5,000,000, (iii) each such
assignment shall be to an Eligible Assignee, (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note subject to such assignment, (v) the assigning Lender shall pay to
the Administrative Agent an assignment fee of US$3,500 and (vi) no assignment
maybe made prior to the making of the Advances. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this Agreement or any
other instrument or document furnished hereto; (iii) such assignee confirms that
it has received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administration Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as Administrative Agent on its behalf
and to exercise such powers and discretion under this Agreement as are delegated
to the
57
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "REGISTER"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, each Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Note a new Note to the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder, a new Note to the order of
the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A hereto.
(e) The Borrower may not assign any portion of its rights and
obligations under this Agreement or under any other Loan Document.
(f) Subject to the receipt of the prior written consent of the
Borrower, which shall not be unreasonably withheld (unless an Event of Default
has occurred and is continuing, in which case such consent shall not be
required), each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement and the other Loan
Documents (including, without limitation, all or a portion of the Advance owing
to it and the Note); provided, however, that (i) such Lender's obligations under
this Agreement and the other Loan Documents (including, without limitation, its
Commitment to the Borrower hereunder) shall remain unchanged, (ii) each
participation shall be in amount not less than $5,000,000, (iii) such Lender
shall remain solely responsible to the other parties hereto and thereto for the
performance of such obligations, (iv) such Lender shall remain the holder of its
Note for all purposes of this Agreement, (v) the Borrower, the Agents and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
58
Agreement, (vi) no participant under any such participation shall have any right
to approve or consent to any amendment or waiver of any provision of this
Agreement or any Note or any other Loan Document, or any consent to any
departure by the Borrower therefrom, except for any such amendment, waiver or
consent described in the first proviso in Section 8.01 and (vii) no Lender may
sell participations prior to the making of the Advances.
(g) Subject to the receipt of the prior written consent of the
Borrower, which shall not be unreasonably withheld, any Lender may, in
connection with any assignment, participation, proposed assignment or proposed
participation pursuant to this Section 8.07, disclose to the assignee,
participant, proposed assignee or proposed participant any information relating
to the Borrower or its Subsidiaries furnished to such Lender by or on behalf of
the Borrower; provided that, prior to any such disclosure, the assignee,
participant, proposed assignee or proposed participant shall agree to preserve
the confidentiality of any Confidential Information relating to the Borrower or
its Subsidiaries received by it from such Lender.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement and the other Loan Documents
(including, without limitation, the Advances owing to it and the Note held by
it) in favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System.
8.08 Confidentiality. Neither the Administrative Agent, the
Collateral Agent nor any Lender shall disclose any Confidential Information to
any other Person without the consent of the Borrower, other than (a) to the
Administrative Agent's, the Collateral Agent's or such Lender's Affiliates and
their officers, directors, employees, agents and advisors and, as contemplated
by Section 8.07(g), to actual or prospective assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process and (c) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking.
8.09 Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York,
excluding (to the fullest extent a New York court would permit) any rule of law
that would cause application of the laws of any jurisdiction other than the
State of New York.
8.10 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
8.11 Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the
59
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York State court or, to the extent permitted by law, in such federal court.
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or the Notes in the courts of
any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(c) The Borrower hereby irrevocably appoints Corporation Services
Company (the "Process Agent," which has consented thereto) with offices on the
date hereof at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as Process
Agent to receive for and on behalf of the Borrower service of process in the
County of New York relating to this Agreement. SERVICE OF PROCESS IN ANY ACTION
OR PROCEEDING AGAINST BORROWER MAY BE MADE ON THE PROCESS AGENT BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY ANY OTHER METHOD OF SERVICE
PROVIDED FOR UNDER APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK, AND THE
PROCESS AGENT IS HEREBY AUTHORIZED AND DIRECTED TO ACCEPT SUCH SERVICE FOR AND
ON BEHALF OF THE BORROWER AND TO ADMIT SERVICE WITH RESPECT THERETO. SUCH
SERVICE UPON THE PROCESS AGENT SHALL BE DEEMED EFFECTIVE PERSONAL SERVICE ON THE
BORROWER, SUFFICIENT FOR PERSONAL JURISDICTION, 10 DAYS AFTER MAILING, AND SHALL
BE LEGAL AND BINDING UPON THE BORROWER FOR ALL PURPOSES, NOTWITHSTANDING ANY
FAILURE OF THE PROCESS AGENT TO MAIL COPIES OF SUCH LEGAL PROCESS TO THE
BORROWER, OR ANY FAILURE ON THE PART OF THE BORROWER TO RECEIVE THE SAME.
Borrower confirms that it has instructed the Process Agent to mail to the
Borrower, upon service of process being made on the Process Agent pursuant to
this Section, a copy of the summons and complaint or other legal process served
upon it, by registered mail, return receipt requested, at the Borrower's address
set forth in Section 8.02 of the Credit Agreement, or to such other address as
the Borrower may notify the Process Agent in writing. Borrower agrees that it
will at all times maintain a process agent to receive service of process in the
County of New York on its behalf with respect to this Agreement. If for any
reason the Process Agent or any successor thereto shall no longer serve as such
process agent or shall have changed its address without notification thereof to
the Agents, the Borrower, immediately after gaining knowledge thereof,
irrevocably shall appoint a substitute process agent acceptable to the Agents in
the County of New York and advise the Agents thereof. Nothing contained in this
Section shall preclude any Secured Party from bringing any action or proceeding
arising out of or relating to this Agreement in the courts of any place where
Borrower or any of its assets may be found or located. TO THE EXTENT PERMITTED
BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, BORROWER HEREBY
60
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY WAIVES,
IN RESPECT OF ANY SUCH ACTION OR PROCEEDING, THE JURISDICTION OF ANY OTHER COURT
OR COURTS THAT NOW OR HEREAFTER, BY REASON OF SUCH PARTY'S PRESENT OR FUTURE
DOMICILE, OR OTHERWISE, MAY BE AVAILABLE TO IT.
8.12 Waiver of Jury Trial. Each of the Borrower, the Administrative
Agent, the Collateral Agent and each Lender hereby irrevocably waives all right
to trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
Note or any other Loan Document or the actions of such Lender in the
negotiation, administration, performance or enforcement thereof.
8.13 Non-Recourse. The recourse of each of the Lenders, the
Administrative Agent and the Collateral Agent under or in connection with this
Agreement and the other Loan Documents shall be solely against the Borrower, the
Collateral and the Grantors and each of the Lenders, the Administrative Agent
and the Collateral Agent agrees that Macquarie Aviation North America, Inc., the
other Affiliates of the Loan Parties other than the Subsidiaries of Borrower
(other than Macquarie Aviation North America, Inc.), and the Equity Investors
shall have no liability under this Agreement or the other Loan Documents and
hereby waive any claim against (a) Macquarie Aviation North America, Inc., (b)
any other Affiliates of the Loan Parties other than the Subsidiaries of Borrower
(other than Macquarie Aviation North America, Inc.), (c) the Equity Investors,
and (d) any manager, director, officer, representative, agent, advisor (unless
such advisor has consented to or agreed that the Agents or the Lenders may rely
on any document, information, report, oral or written advice given or produced
by such advisor even if such document, information, report, oral or written
advice has not been originally intended for the Agent or the Lenders) or
employee of the Loan Parties, any of its Affiliates and of the Equity Investors
(each, a "NON-RECOURSE PARTY") for any liability under or in connection with
this Agreement or any other Loan Document, or any of the transactions
contemplated hereby or thereby, by operation of law or otherwise, to the extent
arising in connection with any breach or default, or alleged breach or default,
under the Loan Documents or any instrument or document provided thereunder,
except to the extent the same is enforced against any Non-Recourse Party only
with respect to its obligations under any Loan Document to which it is a direct
party. The foregoing acknowledgement, waiver and agreement shall be enforceable
by the Borrower, its Affiliates and Equity Investors.
8.14 Capacity of Trustees.
(a) Lenders, Administrative Agent and Collateral Agent acknowledge
and agree that (i) Macquarie Specialised Asset Management Limited has agreed to
provide security for the Senior Debt only in its capacity as Trustee of
Macquarie Global Infrastructure Fund A and (ii) Macquarie Specialised Asset
Management 2 Limited has agreed to provide security for the Senior Debt only in
its capacity as Trustee of Macquarie Global Infrastructure Fund B and in no
other capacities. The Lenders, Administrative Agent and Collateral Agent
acknowledge and agree that any liability arising under or in connection with the
Senior Debt and/or the Loan Documents is limited to and can be enforced against
Macquarie Specialised Asset Management Limited and Macquarie Specialised Asset
Management 2 Limited (collectively, the "Trustees") only to the extent to which
it can be satisfied out of the property of Macquarie Global
61
Infrastructure Fund A and Macquarie Global Infrastructure Fund B (collectively,
the "Trusts"), respectively, out of which the Trustees are actually indemnified
for their liability. Lenders, Administrative Agent and Collateral Agent
acknowledge and agree that this limitation of the Trustees' liability applies
despite any other provision of any of the Loan Documents and extends to all
liabilities and obligations of the Trustees in any way connected with any
representation, warranty, conduct, omission, agreement or transaction related to
the Senior Debt.
(b) Lenders, Administrative Agent and Collateral Agent acknowledge
and agree that it may not xxx the Trustees in any capacity other than as
Trustees of the respective Trusts, including seeking the appointment of a
receiver (except in relation to property of the respective Trusts), a
liquidator, an administrator or any similar person to the Trustees or prove in
any liquidation, administration or arrangement of or affecting the Trustees
(except in relation to property of the respective Trusts).
(c) The Lenders, Administrative Agent and Collateral Agent
acknowledge and agree that the provisions of this Section 8.14 shall not apply
to any obligation or liability of the Trustees to the extent that it is not
satisfied because under the trust deeds establishing the respective Trusts or by
operation of law there is a reduction in the extent of the Trustees'
indemnification out of the assets of the respective Trusts, as a result of the
respective Trustees' fraud, negligence or breach of trust.
62
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
MACQUARIE AIRPORTS NORTH
AMERICA INC.
By: /s/ Xxxxxx Bleach
___________________________________
Name: Xxxxxx Bleach
Title: President
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxx
___________________________________
Name: Xxxxxx X. Xxxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxx
___________________________________
Name: Xxxxxx X. Xxxx
Title: Associate Director
CITIBANK, N.A.,
not in its individual capacity,
but solely as Collateral Agent
By: /s/ Xxxxx Xxxxx
___________________________________
Name: Xxxxx Xxxxx
Title: Vice President
By: ___________________________________
Name:
Title:
63
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT (this "Agreement"), dated November
05, 2002, among MACQUARIE AIRPORTS NORTH AMERICA INC., a Delaware corporation
(the "BORROWER"), WESTLB AG, formerly known as "Westdeutsche Landesbank
Girozentrale" ("WESTLB"), as Initial Lender and Administrative Agent, and
CITIBANK, N.A. ("CITIBANK"), not in its individual capacity, but solely as
Collateral Agent (the "COLLATERAL AGENT") for the Secured Parties, amending the
Credit Agreement, dated as of July 29, 2002, among the Borrower, WestLB as
Initial Lender and as Administrative Agent, and the Collateral Agent (as amended
hereby and as further amended, supplemented or otherwise modified from time to
time after the date hereof, the "Credit Agreement", terms defined therein and
not otherwise defined herein being used herein as therein defined).
WITNESSETH:
WHEREAS, the parties hereto wish to amend the Credit Agreement on the
terms and conditions contained herein.
NOW THEREFORE, in consideration of the mutual agreements contained
herein, the parties hereto hereby agree as follows:
SECTION 1. Certain Defined Terms: The term "Exempt Accounts" shall be
added to Section 1.01 of the Credit Agreement after the definition of the term
"Excess Cash Flow", and shall be defined as follows:
"EXEMPT ACCOUNTS" has the meaning specified in the Security Agreement.
For purposes of the Loan Documents, any funds held or deposited into any of the
Exempt Accounts shall not be counted or taken into account for purposes of
calculating any ratio under the Loan Documents.
SECTION 2. Amendment to Section 5.02(j) of the Credit Agreement: A
final new paragraph shall be added to Section 5.02(j) of the Credit Agreement
after subsection 5.02(j)(F) as follows:
"provided, however, that payments from an Exempt Account shall not be
considered a Restricted Payment if the source of funds being distributed from
such Exempt Account was either (i) directly from an Equity Investor or a
Subordinated Lender in an amount in excess of the Initial Funding or (ii) from
another account of the Borrower or one of its Subsidiaries, provided that, at
the time that such amount was transferred into the Exempt Account, such transfer
constituted a Restricted Payment permitted by this Section 5.02(j) and the
Security Agreement."
1
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
MACQUARIE AIRPORTS NORTH
AMERICA INC.
By: /s/ Xxxxxxx Xxxxxxx
___________________________________
Name: Xxxxxxx Xxxxxxx
Title: Director
WESTLB AG,
as Initial Lender and Administrative Agent
By: /s/ Xxxxxx Xxxx
___________________________________
Name: Xxxxxx Xxxx
Title: Associate Director
By: /s/ Xxxxx X. Xxxxxxxx
___________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Associate Director
CITIBANK, N.A.,
not in its individual capacity, but solely as
Collateral Agent
By: /s/ Xxxxx Xxxxx Xxxxx
___________________________________
Name: Xxxxx Xxxxx Xxxxx
Title: Assistant Vice President
By: ___________________________________
Name:
Title:
2
