EX-10.3: COMMITMENTS LETTERS
EX-10.3 4 y21020exv10w3.txt EX-10.3: COMMITMENTS LETTERS EXHIBIT 10.3 April 13, 2006 Macquarie Infrastructure Company Inc. 600 Fifth Avenue, 21st Floor New York, NY 10020 Attention: Peter Stokes RE: MACQUARIE INFRASTRUCTURE COMPANY'S ACQUISITION OF TRAJEN HOLDINGS, INC. Ladies and Gentlemen: You have advised Macquarie Bank Limited ("MBL") that your subsidiary, Macquarie FBO Holdings LLC, a Delaware corporation ("MFBO"), the parent company of North America Capital Holding Company ("NACH", or "Borrower"), a Delaware corporation, intends to enter into a Purchase and Sale Agreement with Trajen Holdings, Inc. ("Trajen") and the Stockholders thereof regarding an acquisition of Trajen. The purchase price is $331,050,000 plus the costs to acquire Trajen (as defined in the Purchase Agreement). You have also advised MBL that the financing for the acquisition will comprise of (i) additional equity investment by Macquarie FBO Holdings LLC to Borrower and (ii) an increase in Borrower's term loan facility up to $180 million ("Term Facility" and together with NACH's revolving credit facilty, the "Senior Credit Facilities"). The financing of the acquisition will also include an additional $35,000,000 backstop facility which shall be available to acquire the existing loans from any current lender to NACH that does not consent to an increase in NACH's Senior Credit Facilities ("Backstop Facility"). The acquisition and financing and all related transactions are hereinafter collectively referred to as the "Transaction." In connection with the foregoing, MBL is pleased to advise you of its commitment to provide $35,000,000 of the incremental principal amount of the Term Facility and is also committed to provide $5,000,000 of the Backstop Facility, all upon and subject to the terms and conditions set forth in this letter and in the Loan Facilities Term Sheet attached as Exhibit A hereto and incorporated herein by this reference (the "Term Sheet" and, together with this letter agreement and the Fee Schedule attached as Exhibit B, the "Commitment Letter"). All capitalized terms used and not otherwise defined herein shall have the same meanings as specified therefor in the Term Sheet. The commitment of MBL hereunder and the undertaking of MBL to provide the services described herein are subject to and conditional upon the satisfaction of each of the conditions precedent specified in the Term Sheet in a manner acceptable to MBL and the negotiation, execution and delivery of definitive documentation (the "Credit Documentation") for the Senior Credit Facilities consistent with the Term Sheet and otherwise satisfactory to MBL. MBL and the Mandated Lead Arrangers ("MLA's"), (together, the "Underwriters") intend to commence syndication of the Senior Credit Facilities promptly upon execution of the Purchase and Sale Agreement. You agree to actively assist, and to cause the Borrower to actively assist, the Underwriters in achieving a syndication of the Senior Credit Facilities that is satisfactory to the Underwriters and you. Such assistance shall include (a) your providing and causing your advisors to provide the Underwriters and the other Lenders upon request with all information reasonably deemed necessary by the Underwriters to complete syndication, including, but not limited to, information and evaluations prepared by you, the Borrower and your and their advisors, or on your or their behalf, relating to the Transaction, (b) your assistance in the preparation of an Information Memorandum to be used in connection with the syndication of the Senior Credit Facilities, (c) using your commercially reasonable efforts to ensure that the syndication efforts of the Underwriters benefit materially from your existing lending relationships and the existing banking relationships of the Borrower, and (d) otherwise assisting the Underwriters in their syndication efforts, including by making your officers and advisors and the officers and advisors of the Borrower available from time to time to attend and make presentations regarding the business and prospects of the Borrower at one or more meetings of prospective Lenders. It is understood and agreed that the Underwriters will manage and control all aspects of the syndication in consultation with you, including decisions as to the selection of prospective Lenders (with your consent, not to be unreasonably withheld) and any titles offered to proposed Lenders, when commitments will be accepted and the final allocations of the commitments among the Lenders. It is understood that no Lender participating in the Senior Credit Facilities will receive compensation from you in order to obtain its commitment, except on the terms contained herein in the Term Sheet, or in any other document executed concurrently with this letter. Prior to you or any of your affiliates arranging, awarding, syndicating or issuing (or attempting to arrange, award, syndicate or issue) any commercial bank or other credit facilities for the acquisition of fixed base operations, airport management or similar airport service businesses (the "Other Financing"), or announcing any such arrangement, award, syndication or issuance, at any time from the date of this Letter Agreement until the earlier of (a) the date on which general syndication of the Senior Credit Facilities has been completed and MBL has reduced its commitment under the Senior Credit Facilities to a maximum final hold of $50 million ("Successful Syndication") and (b) the date that is 90 calendar days after the launch of syndication (to be commenced no later than May 1, 2006), you agree to consult with the Underwriters in good faith and use commercially reasonable endeavors to ensure that there is no competition between the marketing of the Senior Credit Facilities and the Other Financing. The foregoing sentence shall not limit the ability of you or any affiliate to restructure or amend any debt facility or other facility evidencing debt of any affiliate (provided that such restructuring, consent or amendment does not increase the aggregate amount of loans or commitments thereunder). You hereby represent, warrant and covenant that (a) all information, other than Projections (as defined below), which has been or is hereafter made available to MBL or the Lenders by you or any of your representatives (or on your or their behalf) or by the Borrower or any of its subsidiaries or representatives (or on their behalf) in connection with any aspect of the Transaction (the "Information") is and will be complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading in light of the circumstances under which they were made and (b) all financial projections concerning the Borrower that have been or are hereafter made available to MBL or the Lenders by you or any of your representatives (or on your or their behalf) or by the Borrower or any of its subsidiaries or representatives (or on their behalf) (the "Projections") have been or will be prepared in good faith based upon reasonable assumptions (it is understood and acknowledged, however, that such Projections are based upon a number of estimates and assumptions and are subject to significant business, economic and competitive uncertainties and contingencies and that, accordingly, no assurances are given and no representations, warranties or covenants are made that any of the assumptions are correct, that such Projections will be achieved or that the forward-looking statements expressed in such Projections will correspond to actual results). You agree to furnish us with such Information and Projections as we may reasonably request and to supplement the Information and the Projections from time to time until the date of the initial borrowing under the Senior Credit Facilities (the "Closing Date") so that the representation, warranty and covenant in the immediately preceding sentence is correct on the Closing Date. In issuing this commitment and in arranging and syndicating the Senior Credit Facilities, MBL is and will be using and relying on the Information.You agree that you have not relied on the Information provided by MBL and have satisfied yourself in respect of all matters relevant to this financing and the Transaction. You agree to indemnify and hold harmless MBL, each Lender and each of their related parties, affiliates and their respective officers, directors, employees, agents, advisors and other representatives (each an "Indemnified Party") from and against (and will reimburse each Indemnified Party as the same are incurred for) any and all claims, damages, losses, liabilities and expenses (including, without limitation, the reasonable fees, disbursements and other charges of counsel) 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) (a) any aspect of the Transaction or any similar transaction and any of the other transactions contemplated thereby or (b) the Senior Credit Facilities and any other financings, or any use made or proposed to be made with the proceeds thereof, except to the extent such claim, damage, loss, liability or expense is found in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence, bad faith or willful misconduct. The parties agree that this indemnity continues to apply except to the extent expressly agreed between the parties under the terms of the Transaction. You also agree that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to you or your subsidiaries or affiliates or to you or their respective equity holders or creditors arising out of, related to or in connection with any aspect of the Transaction, except to the extent of direct, as opposed to special, indirect, consequential or punitive, damages determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence, bad faith or willful misconduct. It is further agreed that MBL shall only have liability to you (as opposed to any other person), that MBL shall be liable solely in respect of its own commitment to the Senior Credit Facilities on a several, and not joint, basis with any other Lender and that such liability shall only arise to the extent damages have been caused by a breach of MBL's obligations hereunder to negotiate in good faith definitive documentation for the Senior Credit Facilities on the terms set forth herein as determined in a final non-appealable judgment by a court of competent jurisdiction. In the event that any claim or demand by a third party for which you may be required to indemnify an Indemnified Party hereunder (a "Claim") is asserted against or sought to be collected from any Indemnified Party by a third party, such Indemnified Party shall as promptly as practicable notify you in writing of such Claim, and such notice shall specify (to the extent known) in reasonable detail the amount of such Claim and any relevant facts and circumstances relating thereto; provided, however, that any failure to give such prompt notice or to provide any such facts and circumstances shall not constitute a waiver of any rights of the Indemnified Party, except to the extent that the failure was other than inadvertent and the rights of the Indemnifying Party are actually prejudiced thereby. You shall be entitled to appoint counsel of your choice at your expense to represent an Indemnified Party in any action for which indemnification is sought (in which case you shall not thereafter be responsible for the fees and expenses of any separate counsel retained by that Indemnified Party except as set forth below); provided, however, that such counsel shall be satisfactory to such Indemnified Party. Notwithstanding your election to appoint counsel to represent an Indemnified Party in any action, such Indemnified Party shall have the right to employ separate counsel (including local counsel, but only one such counsel in any jurisdiction in connection with any action), and you shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by you to represent the Indemnified Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the Indemnified Party and you and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it and/or other Indemnified Parties which are different from or additional to those available to you; (iii) you shall not have employed counsel to represent the Indemnified Party within a reasonable time after notice of the institution of such action; or (iv) you shall authorize the Indemnified Party to employ separate counsel at your expense. You shall not be liable for any settlement or compromise of any action or claim by an Indemnified Party affected without your prior written consent, which consent shall not be unreasonably withheld. All payments to be made under the Commitment Letter shall be paid in the currency of invoice and in immediately available, freely transferable cleared funds to such account with such bank as Lenders notify to the Company, and shall be paid without (and free and clear of any deduction for) set-off or counter-claim and without any deduction or withholding for or on account of tax (a "Tax Deduction") unless a Tax Deduction is required by law. If a Tax Deduction is required by law to be made, the amount of the payment due shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required. This Commitment Letter (including its Exhibits A and B) and the contents hereof and thereof are confidential and, except for the disclosure hereof or thereof on a confidential basis to your accountants, attorneys and other professional advisors retained by you in connection with the Transaction, Trajen, or as otherwise required by law, may not be disclosed in whole or in part to any person or entity without our prior written consent; provided, however, it is understood and agreed that you may disclose this Commitment Letter (including the Term Sheet (Exhibit A) but not the Fee Schedule (Exhibit B)), after your acceptance of this Commitment Letter, in filings with the Securities and Exchange Commission and other applicable regulatory authorities and stock exchanges. MBL shall be permitted to use information related to the syndication and arrangement of the Senior Credit Facilities in connection with marketing, press releases or other transactional announcements or updates provided to investor or trade publications; provided, that any press release or public announcement shall not be made without your prior written consent, not to be unreasonably withheld. MBL hereby notify you that pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the "Act"), it is required to obtain, verify and record information that identifies you, which information includes your name and address and other information that will allow MBL to identify you in accordance with the Act. You acknowledge that MBL or its affiliates may be providing financing or other services to parties whose interests may conflict with yours. MBL agrees that it will not furnish confidential information obtained from you to any of its other customers and that it will treat confidential information relating to you, the Borrower and your and their respective affiliates with the same degree of care as it treats its own confidential information. MBL further advises you that it will not make available to you confidential information that it has obtained or may obtain from any other customer. In connection with the services and transactions contemplated hereby, you agree that MBL is permitted to access, use and share with any of its bank or non-bank affiliates, agents, advisors (legal or otherwise) or representatives any information concerning you, the Borrower or any of your or its respective affiliates that is or may come into the possession of MBL or any of such affiliates. The provisions of the immediately preceding seven paragraphs shall remain in full force and effect regardless of whether any definitive documentation for the Senior Credit Facilities shall be executed and delivered, and notwithstanding the termination of this Commitment Letter or any commitment or undertaking of MBL hereunder; provided, however, that you shall be deemed released of your reimbursement and indemnification obligations hereunder upon the execution of all definitive documentation for the Senior Credit Facilities and the initial extension of credit thereunder. This Commitment Letter may be executed in counterparts which, taken together, shall constitute an original. Delivery of an executed counterpart of this Commitment Letter by telecopier, e-mail or facsimile shall be effective as delivery of a manually executed counterpart thereof. This Commitment Letter shall be governed by, and construed in accordance with, the laws of the State of New York. Each of you and MBL hereby irrevocably waives any and 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 Commitment Letter (including, without limitation, the Term Sheet), the Transaction and the other transactions contemplated hereby and thereby or the actions of MBL in the negotiation, performance or enforcement hereof. The commitments and undertakings of MBL may be terminated by us if you fail to perform your obligations under this Commitment Letter on a timely basis. This Commitment Letter, together with the Term Sheet, embodies the entire agreement and understanding among MBL, you, and your affiliates with respect to the Senior Credit Facilities and supersedes all prior agreements and understandings relating to the specific matters hereof. However, please note that the terms and conditions of the commitment and undertakings of MBL hereunder are not limited to those set forth herein or in the Term Sheet. Those matters that are not covered or made clear herein or in the Term Sheet are subject to mutual agreement of the parties. No party has been authorized by MBL to make any oral or written statements that are inconsistent with this Commitment Letter. This Commitment Letter is not assignable by you without our prior written consent and is intended to be solely for the benefit of the parties hereto and the Indemnified Parties. This Commitment Letter and all commitments and undertakings of MBL hereunder will expire at 5:00 p.m. (New York City time) on April 18, 2006 unless you execute this Commitment Letter and return it to us prior to that time. Thereafter, all commitments and undertakings of MBL hereunder will expire on the earliest of (a) 60 days after the date of this letter, unless the definitive documents for the financing of the Transaction have been executed and delivered, and (b) the acceptance by you or any of your affiliates of an offer for all or any substantial part of the capital stock or property and assets of the Borrower and their subsidiaries other than as part of the Transaction. In consideration of the time and resources that MBL will devote to the Senior Credit Facilities, you agree that, until such expiration, you will not solicit, initiate, entertain or permit, or enter into any discussions in respect of, any offering, placement or arrangement of any competing senior credit facilities for the Borrower and their subsidiaries with respect to the matters addressed in this letter. [THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK] We are pleased to have the opportunity to work with you in connection with this important financing. Very truly yours, MACQUARIE BANK LIMITED By: /s/ John Anthony ------------------------------------ Name: John Anthony Title: Manager, Investment Banking Group By: /s/ Tim Hallam ------------------------------------ Name: Tim Hallam Title: Associate Director, Investment Banking Group ACCEPTED AND AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN: MACQUARIE INFRASTRUCTURE COMPANY INC. By: /s/ Peter Stokes --------------------------------- Name: Peter Stokes Title: Chief Executive Officer EXHIBIT A INDICATIVE SUMMARY OF TERMS AND CONDITIONS 13 APRIL, 2006 The terms and conditions contained in the documents in respect of the existing Loan Agreement will apply equally to this transaction, subject only to those variations and amendments which are expressly identified in this Indicative Summary of Terms and Conditions. Capitalized expressions in this document which are not otherwise defined are to be attributed the same meaning as provided in Appendix A to the existing Loan Agreement. I. THE PARTIES 1. Borrower North America Capital Holding Company ("NACH") whose sole business is the ownership of entities ("Project Entities") that operate Fixed Base Operations ("FBO's"), and manage airports and is seeking to acquire Trajen Holdings, Inc. ("Trajen"). 2. Purpose To amend the existing $305 million Loan Agreement dated December 12, 2005 and to provide an additional $180 million of debt needed to fund a portion of the Trajen acquisition costs. 3. Equity Investor Macquarie FBO Holdings LLC, a Delaware limited liability company, indirectly 100% owned by Macquarie Infrastructure Company Trust, a New York Stock Exchange listed entity ("MIC"). 4. Lead Arrangers Mizuho Corporate Bank, Ltd, Bayerische Landesbank and Bank of Ireland. 5. Co-Lead Arranger Macquarie Bank Limited ("MBL"). 6. Syndication Agent Bayerische Landesbank. 7. Administrative Agent Mizuho Corporate Bank, Ltd. 8. Documentation Agent Bank of Ireland. 9. Senior Lenders Lead Arrangers, MBL and other banks or financial institutions to whom the Facilities may be syndicated.
10. Initial Lenders Each Lead Arranger and each Co-Lead Arranger. 11. Revolving Loan Lender Mizuho Corporate Bank, Ltd. 12. Legal Advisor Orrick, Herrington & Sutcliffe LLP. 13. Other Consultants Technical: The Aviation Group/Leigh Fisher Associates (a division of Jacobs Consulting Inc) Environmental: Environmental Strategies Consulting Insurance: Moore-McNeil, LLC Accounting: Ernst and Young. II. THE FACILITIES 14. The Facilities The Facilities will consist of the following: (i) Term Loan Facility of $300,000,000; (ii) Delayed Draw Acquisition Facility up to $180,000,000; and (iii) Revolving Credit Facility of $5,000,000. TERM LOAN FACILITY 15. Use of Proceeds The Term Loan was used to refinance existing debt of NACH and MANA, pay for any costs and expenses associated with the borrowing and finance a distribution to Equity Investor. 100% of the Term Loan Proceeds were drawn on December 14, 2005. 16. Term Loan Maturity Date December 12, 2010. 17. Closing Date December 12, 2005. 18. Mandatory Prepayment The Borrower shall promptly make Mandatory Prepayments in the following situations. The Mandatory Prepayments shall apply to the initial balance of the Term Loan Facility and any amounts added to the Term Loan Facility due to draws under the Delayed Draw Acquisition Facility. i. If any insurance proceeds (other than business interruption insurance) are not used for reconstruction, Borrower will prepay that amount of the Term Loan Facility, without penalty, subject to appropriate materiality tests. ii. If during any fiscal year any net proceeds from a sale (or series of sales) of the Borrower's or its Subsidiary's property that is not used to purchase replacement assets exceeds $250,000, Borrower will prepay the Loans in the amount of such excess. iii. If Borrower or its Subsidiaries incurs debt for borrowed money that is not permitted indebtedness, 100% of the net debt
proceeds will be applied to prepay the Loans. iv. If Borrower or its Subsidiaries sells or issues equity securities (other than any issuance or sale to fund expansion capital expenditures or to prepay Loans in the event described in paragraph vi below, or certain intercompany issuance), 100% of the net equity proceeds will be applied to prepay the Loans. v. The proceeds of any termination payment or similar compensation received in respect of the termination of any FBO Lease, management contract or the heliport contract (each being a Material Contract) will be applied to prepay the Loans. vi. If the Debt to EBITDA Ratio (as defined below) is higher than amounts set out below Borrower will be required to sweep all cash to pay down debt until the following ratios have been achieved. Failure to achieve the following ratios within two quarters after the test date shall result in an Event of Default: Date of Debt to EBITDA Ratio test Maximum ratio ___________ From the third anniversary of term loan drawdown To fourth anniversary: 5.5x From the fourth anniversary of term loan drawdown To six months prior to Maturity Date: 5.0x From six months prior to Maturity Date To full repayment: 4.5x In all cases the debt repayment can be made from cash on hand or additional equity injection from Equity Investor. 19. Optional Prepayment Prepayments of the Term Loan Facility are permitted without penalty (subject to the payment of any break funding costs incurred including reversing interest rate hedging transactions) upon at least five (5) Business Days written notice. Optional Repayments of the Term Loan Facility must be made in a minimum amount of $1,000,000 and in increments of $500,000. Amounts repaid under the Term Loan Facility may not be redrawn. DELAYED DRAW ACQUISITION FACILITY 20. Use of Proceeds The Delayed Draw Acquisition Facility is available to acquire 100% of the equity in Trajen and will be used to partially finance the acquisition. 21. Drawdown Advances under the Delayed Draw Acquisition Facility may be made in a single distribution up to the full amount of the Delayed Draw Acquisition Facility.
22. Repayment Advance under the Delayed Draw Acquisition Facility will be classified as part of the Term Loan Facility, and, for the avoidance of doubt, are subject to the same terms and conditions. All amounts outstanding under the Term Loan Facility (including advances made under the Delayed Draw Acquisition Facility) shall be due and payable pari passu in full on the Maturity Date. 23. Termination of Delayed Draw Unused commitments under the Delayed Draw Acquisition Facility Acquisition Facility will be terminated on the Facility earlier of (i) the day of a partial draw down of the Facility or (ii) December 31, 2006. 24. Amendment Closing Date [May 31, 2006] REVOLVING CREDIT FACILITY 25. Use of Proceeds Borrower may utilize the Revolving Credit Facility for Letters of Credit and working capital requirements. 26. Maturity Date Term Loan Facility Maturity Date. 27. Closing Date December 12, 2005. 28. Drawdown Advances under the Revolving Credit Facility may be made, and Letters of Credit may be issued, on a revolving basis up to the full amount of the Revolving Credit Facility. 29. Prepayment Prepayments of the Revolving Credit Facility are permitted without penalty on any Interest Payment Date upon not less than three (3) days prior written notice to the Revolving Loan Lender. Optional Prepayments of the Revolving Credit Facility must be made in a minimum amount of $100,000 and in increments of $50,000. All amounts outstanding under the Revolving Credit Facility shall be due and payable in full on the Maturity Date. III. THE CREDIT FACILITIES 30. Mandatory Debt Service Interest, Commitment Fee, Agency Fee and periodic scheduled hedging obligations payable by the Borrower will be considered Mandatory Debt Service. 31. Restricted Payments (Lock-Up) Borrower may make quarterly distributions (within 35 days following each quarterly payment date) so long as the following conditions (together the "Distribution Requirements") have been met: i. The DSCR for the preceding twelve month period is 1.50 or higher; ii. The DSCR for the subsequent twelve month period is projected to
be 1.50 or higher; iii. Debt Service Reserve Account is fully funded; iv. During the EBITDA Test Period, no failure of the Applicable Minimum EBITDA has occurred and no Lock-Up Period is outstanding; v. Mandatory Prepayments have been made; and, vi. No Default or Event of Default exists. In the event that distributions are not permitted due to failure to achieve the Distribution Requirements, then monies which would have been distributed absent such failures will be deposited and trapped in the Special Reserve Account. Following such deposit, if on each of the next succeeding two (2) Distribution Dates the Distribution Requirements are not satisfied, then all monies which have been on deposit in the Special Reserve Account for at least six (6) months shall be applied to a Mandatory Prepayment of the Term Loan Facility. All monies on deposit in the Distribution Reserve Account (and not required to make a Mandatory Prepayment in accordance with the preceding sentence) shall be available for distribution if the Distribution Requirements are satisfied for each of the two Distribution Dates. 32. Applicable EBITDA Minimum At each distribution date during the period from the Term Loan Disbursement Date through December 31, 2008 (the "EBITDA Test Period"), trailing 12 month EBITDA (on a pro forma basis, as if all facilities had been owned for the full twelve months) shall exceed the following levels: Year Minimum EBITDA ---- -------------- 2006 $66.9 million 2007 $71.9 million 2008 $77.5 million 33. Collateral The Facilities are,among other things, secured by a grant of first priority security interest in the following property (subject to acceptable encumbrances): i. Project Revenues (including all income, revenues, all interest earned on deposits and reserves, rates, fees, charges, rentals, or other receipts derived by or related to the operations of the Borrower and its Subsidiaries, and any revenues assigned to the Borrower and its Subsidiaries and proceeds of the sale or other disposition of all or any part of the Borrower's or its Subsidiaries' assets ("Project Revenues"), project accounts and cash therein, including the Debt Service Reserve Account. ii. (A) Pledge of shares of the Borrower and (B) as and to the extent permitted under the terms of the applicable FBO Leases (unless prohibited under the terms of the leases without airport authority consent), pledge of shares of each of the Subsidiaries of the Borrower. [If the Borrower is unable to obtain all relevant consents (and provided the Borrower makes reasonable efforts to
obtain such consents) including from the airport authority of Brainard-Hartford Airport for the pledge of shares of the Connecticut Subsidiaries within 30 days after the Closing Date, such Subsidiaries will be directly and wholly-owned by a single purpose affiliate whose shares will be pledged.] iii. Security interest in substantially all assets of the business, including, all management contracts and FBO leases, all other material agreements and rights to receive Project Revenues (including fuel contracts, subleases, service agreements, employment agreements), licenses, equipment and machinery, inventory (including jet fuel) and account receivables and intellectual property (including the "Atlantic Aviation" brand name and any acquired intellectual property) whether existing at the Closing Date or thereafter acquired, and the proceeds thereof. Note that under most of the FBO leases, prior consent of the airport authority is required to collaterally assign the FBO leases, and the Borrower is obligated to use commercially reasonable efforts to obtain consents from the airport authorities. iv. Insurance policies and any claims or proceeds. 34. Hedging Requirements Borrower is required to enter into interest rate hedges or novation arrangements with the swap providers from the original financings at financial close for at least 75% of the Term Loan Facility and Delayed Draw Acquisition Facility interest rate exposure, for the remaining term of the Term Loan Facility and the Delayed Draw Acquisition Facility. All hedging payments will rank pari-passu with the Facilities. 35. Representations and Warranties Usual and customary including, among other things,: i. Valid existence of Borrower; ii. Due authorization of Borrower; iii. Governing law, enforcement of judgments, validity and admissibility; iv. No default; v. Financial statements of Borrower are in accordance with its books and records and GAAP; vi. Funding of pension plans and compliance with ERISA; vii. Payment of taxes (subject to customary contest rights); viii. No material pending or threatened uninsured litigation; ix. Ownership of or leasehold interest in assets; x. No breach of environmental or other laws in any material respect (subject to customary contest rights); xi. No other business; xii. Insurance coverage is in line with prudent market practice; xiii. All consents, filings, and licenses etc. required for conduct of business have been obtained and are in full force and effect; xiv. No encumbrances other than Permitted Encumbrances;
xv. No indebtedness for borrowed money other than permitted indebtedness; xvi. Effectiveness, enforceability of material agreements; xvii.Creation, perfection and first priority of liens (except permitted liens); xviii.Solvency; xix. No Material Adverse Effect; xx. Due authorization and valid issuance of all outstanding equity interests of Borrower and its Subsidiaries; xxi. Non-deferred payment of purchase price for aviation fuel at prevailing market prices at time of delivery; and xxii. Accuracy of information furnished. 36. Conditions Precedent Usual and customary Conditions Precedent to closing and to Advances under each of the Facilities (in each case in a form and substance satisfactory to the Initial Lenders) including, but not limited to,: i. financial model audit of the combined business; ii. receipt of the insurance report prepared by Moore-McNeil; iii. audited accounts for Trajen's actual operations for the 12 months ended December 31, 2005 that are not materially different from the actual 12 month EBITDA and year-end 2005 balance sheet results identified as "FY2005A" in the Ernst and Young accounting report and that contain no material previously undisclosed liabilities; iv. no evidence that Trajen has unfunded pension liabilities (to be confirmed by Ernst and Young in their accounting report); v. a) Delivery of executed purchase and sale agreements with respect to Trajen's acquisition of the Phoenix and Stockton assets (together the "Target Assets"), b) confirmation that Trajen has closed the acquisition of the Target Assets, in each case on the terms and conditions set forth in their respective purchase and sale agreements, c) Trajen has not waived any material right or any material condition set forth within their respective purchase and sale agreements, d) each acquisition is implemented as an asset purchase, and e) the assets are purchased debt-free, except for Permitted Indebtedness; vi. no material adverse change; vii. no Default or Event of Default has or shall have occurred and is continuing and no Default or Event of Default will result from the acquisition; viii. evidence that all liabilities relating to the non-FBO businesses have been novated to the relevant company
to be set up by the vendor ("NEWCO") and that there is no recourse back to the Borrower for these liabilities; ix. all third party consents and approvals received; x. certification that all conditions of Share Purchase Agreement have been met and the business is being acquired debt free, except for Permitted Indebtedness; xi. funding of the Debt Service Reserve Account; xii. all pledges of security be in full force and effect (with local opinions as necessary), delivery of Subsidiary Guarantees; xiii. funding by MIC of $175 million of incremental cash equity; xiv. a forecast DSCR of no less than 1.85 times; and xv. the Share Purchase Agreement obligates the vendor to pay for all site remediation expenses at the Aspen FBO, if any. 37. Undertakings Positive and negative undertakings given by the Borrower in customary form for transactions of this nature, including without limitation appropriate materiality tests, permitted exceptions and, where appropriate, de minimis provisions. 38. Event of Default Usual and customary including, among other things,: i. Non-payment (with 3 Business Days grace for interest and other non-principal amounts); ii. Failure by the Borrower to comply with covenants relating to inspections of the property and offices of the Borrower and its Subsidiaries, Use of Proceeds; insurance, a default under any Subsidiary Guaranty or other Security Document, legal existence and good standing of the Borrower and its Subsidiaries, hedging arrangements, compliance with legal requirements and contractual obligations, provision of Additional Collateral, its obligations in respect of New Subsidiaries and all Negative Covenants; iii. Default by the Borrower or any other Loan Party in performance or breach of other obligations or undertakings under any Project Document including the Financing Documents not remedied within a 30-day remedy period for affirmative covenants (extendable for longer period granted at Administrative Agent's discretion and if remedy cannot be accomplished in 30 days and is being diligently pursued and extension does not result in a Material Adverse Effect); iv. Any representation or warranty made by the Borrower or any other Loan Party being untrue in any respect which will or may have a Material Adverse Effect; v. Cross-default by the Borrower or any of its Subsidiaries with respect to any other debt (other than in respect of any subordinated debt) subject to materiality threshold of $500,000; vi. Bankruptcy and insolvency events involving the Borrower or any of its Subsidiaries;
vii. Failure to pay unstayed and uninsured judgments within 30 days (with appropriate materiality qualification); viii. Change of business; ix. Any insurance required is terminated, ceases to be valid or is amended so as to have a Material Adverse Effect unless substantially similar cover (and which is otherwise in compliance with the Borrower's insurance covenants) replaces such insurance; x. Nationalization, condemnation or government taking without fair value being paid therefor (so to allow replacement of such property or prepayment of the Obligations) that causes a Material Adverse Effect; xi. Required authorizations are revoked or terminated that causes a Material Adverse Effect; xii. The Borrower or any of its Subsidiaries fails to comply with applicable laws including any environmental laws; xiii. Backward DSCR is less than or equal to 1.20 as of the end of any quarter; xiv Change of Control; xv. Failure to perform any Material Contract (subject to 30 day remedy period or such longer period granted at the Administrative Agent's discretion if remedy cannot be accomplished in 30 days and is being diligently pursued and extension does not result in a Material Adverse Effect); provided that failure on the part of a party other than the Borrower or its Subsidiaries is an Event of Default only if such failure has a Material Adverse Effect; xvi. Inappropriate use of, or withdrawal of funds from, project accounts by the Borrower or any party to a Material Contract; xvii. Default under the Subsidiary Guaranty or any other Security Document or Security Agreement; xviii.Any Loan Document or any material term thereof ceases to be in full force and effect, security ceases to be effective as first priority security (subject to Permitted Liens), or the issuance of any equity securities are not subject to first priority, perfected lien; xix. Any reportable ERISA event; xx. Any Material Contract ceases to be in full force and effect, or is terminated prior to the scheduled expiration date, or any material provision thereof is declared null and void; xxi. Abandonment of business at any airport for 30 days; or xxii. Any event of condition involving financial impact to the Borrower of its Subsidiaries in excess of $10 million that could have a Material Adverse Effect. An Event of Default in (xv), (xx) or (xxi) above that affects an FBO or FBOs (other than the fifteen largest FBO contributors of EBITDA) may be cured prior to acceleration of the Loans by prepayment of that portion of the Term Loan Facility that corresponds to the highest of the projected, actual or preceding three-year average EBITDA
contribution of the affected FBO(s). Such prepayment will release the affected FBO(s) from the Financing Documents. This method of cure may be exercised only once during the term of the Loans, and only if the proportional EBITDA contribution of the affected FBO(s) does not exceed 5% of aggregate EBITDA. IV. INTEREST RATE AND FEES 39. Interest Rate The Facilities will bear interest at one, two, three or six month LIBOR plus the Applicable Margin. 40. Applicable Margin Years 1 to 3: 1.75%; Years 4 to 5: 2.00%. 41. Interest Payment Date Interest will be paid in arrears on the last day of each Interest Period, except in the case of a six months Interest Period, where interest will also be paid three months from the start of the Interest Period. 42. Interest Period One, two, three or six months. 43. Default Rate Interest Rate plus 2% per annum. 44. Commitment Fee 0.50% per annum of the undrawn portion of the Facilities, including the Delayed Draw Acquisition Facility, payable on any Interest Payment Date. The Commitment Fee will accrue in arrears from the Closing Date. V. FLOW OF FUNDS 45. Priority of Payments Following each Interest Payment Date, after payment of operating expenses, taxes and required capital expenditures, and the retention/refunding of reserves for contingencies and the payment of items reasonably expected to be due and payable prior to the next Interest Payment Date, the following distributions shall be made in the following order of priority: i. Fees and expenses due to the Lead Arranger and Senior Lenders; ii. Interest on the Term Loan Facility, the Revolving Credit Facility and the Delayed Draw Acquisition Facility, as well as any hedging obligations; iii. Mandatory Repayment; iv. Mandatory Prepayments; v. any required payments to the Debt Service Reserve Account; vi. Optional Repayment and any hedging termination obligations payable as a result of such repayment; vii. any payments (if applicable) to the Distribution Reserve Account; and viii. Distributions to Equity Investor. 46. Debt Service Reserve Borrower shall maintain a Debt Service Reserve Account in an
Account amount equal to six months of Mandatory Debt Service payable under the Facilities. The Debt Service Reserve Account shall be fully funded on the Closing Date. Alternatively, a letter of credit by a financial institution rated at least A-/A3 may be posted for the benefit of the Senior Lenders on the Closing Date. VI. RATIOS 47. Debt Service Coverage Ratio The Debt Service Coverage Ratio ("DSCR") for a particular period will be calculated on a quarterly basis as the ratio of (a) Net Cash Flow for the twelve-month period ending on the respective calculation date to (b) Mandatory Debt Service for the twelve-month period ending on the respective calculation date. 48. Debt to EBITDA Ratio The Debt to EBITDA Ratio as of a particular date will be calculated as the ratio of (a) total amount of Facilities outstanding to (b) earnings before interest, tax, depreciation and amortization. 49. Net Cash Flow "Net Cash Flow" means, in respect of any period, (a) aggregate Operating Revenues received during such period plus additional equity contributions during such period not used to pay for expansion capital expenditures, less (b) the operating expenses, maintenance capital expenditure and taxes paid during such period, but excluding any expansion capital expenditures funded with distributed amounts or equity contributions or financed with permitted debt, non-cash charges, interest and principal payments on the loans, distributions, investments, costs paid by insurance proceeds, and employee phantom stock ownership plan payments.. VII. GENERAL 50. Reporting requirements of the Usual and customary including, among other Borrower things: i. Annual audited Financial Statements no later than 90 days after close of each fiscal year; ii. Quarterly Financial Statements no later than 45 days after close of each fiscal quarter; iii. Contemporaneously with delivery of (i) and (ii): a compliance certificate stating that an Event of Default has not occurred, or if an Event of Default has occurred and is continuing (and assuming the Administrative Agent has agreed in its discretion to extend the cure period), a statement of proposed cure remedies and a certificate stating all expansion capital expenditures during the previous quarter and the source of funds for such expenditures; iv. Monthly operating reports no later than 30 days after close of each month; v. EBITDA certificate no later than 30 days after close of each fiscal quarter during the EBITDA Test Period, certifying the EBITDA for the twelve-month period; vi. Debt to EBITDA Ratio certificate no later than 30 days after
close of each fiscal quarter during the Debt to EBITDA Test Period, certifying the Debt to EBITDA Ratio for the twelve-month period; and vii. DSCR certificate no later than 30 days after the close of each fiscal quarter, certifying the DSCR for the twelve-month period. 51. Governing Law The documentation is governed by New York law, venue shall be in New York County, and contains a waiver of jury trial.
April 18, 2006 Macquarie Infrastructure Company Inc. 600 Fifth Avenue, 21st Floor New York, NY 10020 Attention: Peter Stokes RE: MACQUARIE INFRASTRUCTURE COMPANY'S ACQUISITION OF TRAJEN HOLDINGS, INC. Ladies and Gentlemen: Reference is made to that certain Loan Agreement, dated as of December 12, 2005 (as the same has been amended, supplemented or otherwise modified prior to the date hereof, the "Existing Credit Agreement"), by and among North America Capital Holding Company, a Delaware company, as Borrower ("NACH" or the "Borrower"), the lenders party thereto, and Mizuho Corporate Bank, Ltd. ("Mizuho"), as Administrative Agent (with The Governor and Company of the Bank of Ireland ("BOI") acting as Documentation Agent, Bayerische Landesbank ("BLB") acting as Syndication Agent and BOI, BLB and Mizuho, acting as Lead Arrangers (collectively, in such capacity, the "Lead Arrangers") under such existing credit facilities (the "Existing Credit Facilities"). You have advised the Lead Arrangers that your subsidiary, Macquarie FBO Holdings LLC, a Delaware corporation ("MFBO") and the parent company of the Borrower, intends to (i) enter into a Purchase and Sale Agreement with Trajen Holdings, Inc. ("Trajen") and its stockholders pursuant to which, among other things, MFBO will acquire Trajen (the "Acquisition") and (ii) thereafter will assign its rights and obligations under the Purchase and Sale Agreement to the Borrower. The purchase price for the Acquisition is $331,050,000, plus the costs to acquire the Project C acquisition (as defined in the Purchase and Sale Agreement). You have also advised the Lead Arrangers that the Acquisition will be funded as follows: (i) MFBO will make a cash common equity contribution to the Borrower and (ii) the Existing Credit Agreement will be amended (the "Amended Credit Agreement") to provide for an increase in the existing term loan facility of up to $180 million (the "Delayed Draw Acquisition Facility"), 100% of which net proceeds will be drawn in a one-time borrowing to fund a portion of the Acquisition purchase price and to pay related costs. The proposed acquisition financing will also include a $35,000,000 backstop facility the proceeds of which shall be used to acquire the existing loans at not greater than par value from any current lender under the Existing Credit Agreement that does not consent (if such consent is required) to the transactions contemplated by the Amended Credit Agreement (the "Backstop Facility" and together with the Delayed Draw Acquisition Facility, the "Additional Credit Facilities" and together with the Existing Credit Facilities, the "Senior Credit Facilities"). The Acquisition and financing therefor and all related transactions are hereinafter collectively referred to as the "Transaction." In connection with the foregoing, each Lead Arranger is pleased to advise you of its commitment to provide up to (i) 27.22% ($49.0 million) of the Delayed Draw Acquisition Facility and (ii) 28.57% ($10.0 million) of the Backstop Facility. Mizuho shall continue to act as the sole and exclusive Administrative Agent for the Senior Credit Facilities, all upon and subject to the terms and conditions set forth in this letter agreement and in the Loan Facilities Term Sheet attached as Exhibit A hereto and incorporated herein by this reference (the "Term Sheet" and, together with this letter agreement, this "Commitment Letter"). Each of the Lead Arrangers is further pleased to advise you of its willingness, as a lead arranger for the Additional Credit Facilities, to form a syndicate of financial institutions and institutional lenders (including the Lead Arrangers) (collectively, the "Lenders") in consultation with you and with your prior written consent (not to be unreasonably withheld) for the Additional Credit Facilities. All capitalized terms used and not otherwise defined herein shall have the same meanings as specified therefor in the Term Sheet. The commitment of each Lead Arranger hereunder and the undertaking of each Lead Arranger to provide the services described herein are subject to (i) the Borrower having accepted from each other Lead Arranger and Macquarie Bank Limited aggregate commitments for the remaining 72.78% ($131.0 million) of the Delayed Draw Acquisition Facility and 71.43% ($25.0 million) of the Backstop Facility on terms identical to those of such Lead Arranger, (ii) the satisfaction of each of the conditions precedent specified in the Term Sheet in a manner acceptable to such Lead Arranger, and (iii) the negotiation, execution and delivery of definitive documentation (the "Credit Documentation") for the Additional Credit Facilities consistent with the Term Sheet and otherwise satisfactory to such Lead Arranger. The Lead Arrangers intend to commence syndication of the Additional Credit Facilities promptly upon execution of the Purchase and Sale Agreement. You agree to actively assist, and to cause the Borrower to actively assist, the Lead Arrangers in achieving a syndication of the Additional Credit Facilities that is satisfactory to the Lead Arrangers and you. Such assistance shall include (a) your providing and causing your advisors to provide the Lead Arrangers and the other Lenders upon request with all information reasonably deemed necessary by the Lead Arrangers to complete syndication, including, but not limited to, information and evaluations prepared by you, the Borrower and your and their advisors, or on your or their behalf, relating to the Transaction, (b) your assistance in the preparation of an Information Memorandum to be used in connection with the syndication of the Additional Credit Facilities, (c) using your commercially reasonable efforts to ensure that the syndication efforts of the Lead Arrangers benefit materially from your existing lending relationships and the existing banking relationships of the Borrower, and (d) otherwise assisting the Lead Arrangers in their syndication efforts, including by making your officers and advisors and the officers and advisors of the Borrower available from time to time to attend and make presentations regarding the business and prospects of the Borrower at one or more meetings of prospective Lenders. It is understood and agreed that the Lead Arrangers will manage and control all aspects of the syndication in consultation with you, including decisions as to the selection of prospective Lenders (with your consent, not to be unreasonably withheld or delayed) and any titles offered to proposed Lenders, when commitments will be accepted and the final allocations of the commitments among the Lenders. It is understood that no Lender participating in the Additional Credit Facilities will receive compensation from you in order to obtain its commitment, except on the terms contained herein in the Term Sheet. You agree that until the earlier of (a) the date on which general syndication of the Additional Credit Facilities has been completed and each Lead Arranger has reduced its commitment under the Senior Credit Facilities to a maximum final hold of $60 million ("Successful Syndication") and (b) the date that is 90 calendar days after the launch of syndication (to be commenced no later than May 1, 2006), unless otherwise agreed to by the Lead Arrangers, there shall be no competing issues of debt securities by, or commercial bank facilities to, you, the Borrower or any of your or its respective subsidiaries or affiliates for the purpose of acquiring fixed based operations, airport management or similar airport service businesses (it being understood that competing issues would not include debt securities or commercial bank facilities currently outstanding). The foregoing sentence shall not limit the ability of you or any affiliate to restructure or amend any outstanding debt facility, which in the ordinary course, becomes due and owing at its scheduled maturity (provided that such restructuring, consent or amendment does not increase the aggregate amount of loans or commitments thereunder). At any time after 45 days after the launch of syndication of the Additional Credit Facilities to new potential lenders that are not currently a Lender to the Existing Credit Facilities, the Lead Arrangers shall be entitled (unless Successful Syndication has been achieved within such 45-day period), after consultation with you, to increase the Underwriting Fee payable in respect of the Additional Credit Facilities by fifteen (15) basis points if the Lead Arrangers determine in their sole discretion that such changes are advisable in order to enhance the prospects of a Successful Syndication; provided, however, that the Lead Arrangers shall not exercise market flex with respect to the Underwriting Fee unless the Lead Arrangers would be required to pay to potential lenders upfront participation fees aggregating an amount that is in excess of 75 basis points in order to achieve Successful Syndication. You agree to enter into, and to cause your affiliates to enter into, such amendments to the Credit Documentation as may be necessary or reasonably requested by the Lead Arrangers to reflect such change to the Senior Credit Facilities made in furtherance of the immediately preceding sentence. You hereby represent, warrant and covenant that (a) all information, other than Projections (as defined below), which has been or is hereafter made available to the Lead Arrangers or the Lenders by you or any of your representatives (or on your or their behalf) or by the Borrower or any of its subsidiaries or representatives (or on their behalf) in connection with any aspect of the Transaction (the "Information") is and will be complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading in light of the circumstances under which they were made and (b) all financial projections concerning the Borrower that have been or are hereafter made available to the Lead Arrangers or the Lenders by you or any of your representatives (or on your or their behalf) or by the Borrower or any of its subsidiaries or representatives (or on their behalf) (the "Projections") have been or will be prepared in good faith based upon reasonable assumptions (it is understood and acknowledged, however, that such Projections are based upon a number of estimates and assumptions and are subject to significant business, economic and competitive uncertainties and contingencies and that, accordingly, no assurances are given and no representations, warranties or covenants are made that any of the assumptions are correct, that such Projections will be achieved or that the forward-looking statements expressed in such Projections will correspond to actual results). You agree to furnish us with such Information and Projections as we may reasonably request and to supplement the Information and the Projections from time to time until the date of the initial borrowing under the Additional Credit Facilities (the "Closing Date") so that the representations, warranties and covenants in the immediately preceding sentence are correct on the Closing Date. In issuing this commitment and in arranging and syndicating the Additional Credit Facilities, the Lead Arrangers are and will be using and relying on the Information. You agree to indemnify and hold harmless each Lead Arranger, each Lender and each of its affiliates and their respective officers, directors, employees, agents, advisors and other representatives (each an "Indemnified Party") from and against (and will reimburse each Indemnified Party as the same are incurred for) any and all claims, damages, losses, liabilities and expenses (including, without limitation, the reasonable fees, disbursements and other charges of counsel) 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) (a) any aspect of the Transaction or any similar transaction and any of the other transactions contemplated thereby and (b) the Senior Credit Facilities and any other financings, or any use made or proposed to be made with the proceeds thereof, except to the extent such claim, damage, loss, liability or expense is found in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct. You also agree that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you or your subsidiaries or affiliates or to your or their respective equity holders or creditors arising out of, related to or in connection with any aspect of the Transaction, except to the extent of direct, as opposed to special, indirect, consequential or punitive, damages determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct. It is further agreed that each Lead Arranger shall only have liability to you (as opposed to any other person), that each Lead Arranger shall be liable solely in respect of its own commitments to the Senior Credit Facilities on a several, and not joint, basis with any other Lender and that such liability shall only arise to the extent damages have been caused by a breach of such Lead Arranger's obligations hereunder to negotiate in good faith definitive documentation for the Additional Credit Facilities on the terms set forth herein as determined in a final non-appealable judgment by a court of competent jurisdiction. In the event that any claim or demand by a third party for which you may be required to indemnify an Indemnified Party hereunder (a "Claim") is asserted against or sought to be collected from any Indemnified Party by a third party, such Indemnified Party shall as promptly as practicable notify you in writing of such Claim, and such notice shall specify (to the extent known) in reasonable detail the amount of such Claim and any relevant facts and circumstances relating thereto; provided, however, that any failure to give such prompt notice or to provide any such facts and circumstances shall not constitute a waiver of any rights of the Indemnified Party, except to the extent that the rights of the Indemnifying Party are actually materially prejudiced thereby. You shall be entitled to appoint counsel of your choice at your expense to represent an Indemnified Party in any action for which indemnification is sought (in which case you shall not thereafter be responsible for the fees and expenses of any separate counsel retained by that Indemnified Party except as set forth below); provided, however, that such counsel shall be satisfactory to such Indemnified Party. Notwithstanding your election to appoint counsel to represent an Indemnified Party in any action, such Indemnified Party shall have the right to employ separate counsel (including local counsel, but only one such counsel in any jurisdiction in connection with any action), and you shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by you to represent the Indemnified Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the Indemnified Party and you and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it and/or other Indemnified Parties which are different from or additional to those available to you; (iii) you shall not have employed counsel to represent the Indemnified Party within a reasonable time after notice of the institution of such action; or (iv) you shall authorize the Indemnified Party to employ separate counsel at your expense. You shall not be liable for any settlement or compromise of any action or claim by an Indemnified Party affected without your prior written consent, which consent shall not be unreasonably withheld or delayed. At the earlier of the Closing Date or the termination of this Commitment Letter, you agree to reimburse or cause the Borrower to reimburse the Lead Arrangers for all reasonable out-of-pocket costs and expenses (including, but not limited to, expenses relating to due diligence investigations, consultants' and other professional and advisory fees, travel expenses and fees, disbursements and reasonable charges of counsel) incurred by the Lead Arrangers in connection with preparing, negotiating and/or executing the Credit Documentation and this Commitment Letter and term sheets, and carrying out the syndication of the Additional Credit Facilities, in each case whether or not incurred before or after the date of this Commitment Letter. All payments to be made under this Commitment Letter shall be paid in U.S. dollars and in immediately available, freely transferable cleared funds to such account with such bank as each Lead Arranger notifies to the Company, and shall be paid without (and free and clear of any deduction for) set-off or counter-claim and without any deduction or withholding for or on account of tax (a "Tax Deduction") unless a Tax Deduction is required by law. If a Tax Deduction is required by law to be made, you shall pay such tax and the amount of the payment due shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required. This Commitment Letter and the Term Sheet and the contents hereof and thereof are confidential and, except for the disclosure hereof or thereof on a confidential basis to your accountants, attorneys and other professional advisors retained by you in connection with the Transaction, Trajen, or as otherwise required by law, may not be disclosed in whole or in part to any person or entity without our prior written consent; provided, however, it is understood and agreed that you may disclose this Commitment Letter (including the Term Sheet) but not the Fee Letter attached as Exhibit B to this Commitment Letter after your acceptance of this Commitment Letter, in filings with the Securities and Exchange Commission and other applicable regulatory authorities and stock exchanges. The Lead Arrangers shall be permitted to use information related to the syndication and arrangement of the Additional Credit Facilities in connection with marketing, press releases or other transactional announcements or updates provided to investor or trade publications; provided, that any press release or public announcement shall not be made without your prior written consent, not to be unreasonably withheld or delayed. The Lead Arrangers hereby notify you that pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the "Act"), they are required to obtain, verify and record information that identifies you, which information includes your name and address and other information that will allow the Lead Arrangers to identify you in accordance with the Act. You acknowledge that each Lead Arranger or its affiliates may be providing financing or other services to parties whose interests may conflict with yours. Each Lead Arranger agrees that it will not furnish confidential information obtained from you to any of its other customers and that it will treat confidential information relating to you, the Borrower and your and their respective affiliates with the same degree of care as it treats its own confidential information. Each Lead Arranger further advises you that it will not make available to you confidential information that it has obtained or may obtain from any other customer. In connection with the services and transactions contemplated hereby, you agree that each Lead Arranger is permitted to access, use and share with any of its bank or non-bank affiliates, agents, advisors (legal or otherwise) or representatives any information concerning you, the Borrower or any of your or its respective affiliates that is or may come into the possession of such Lead Arranger or any of such affiliates. The provisions of the immediately preceding eleven paragraphs shall remain in full force and effect regardless of whether any definitive documentation for the Additional Credit Facilities shall be executed and delivered, and notwithstanding the termination of this Commitment Letter or any commitment or undertaking of the Lead Arrangers hereunder; provided, however, that you shall be deemed released of your reimbursement and indemnification obligations hereunder upon the execution of all definitive documentation for the Additional Credit Facilities and the initial extension of credit thereunder. This Commitment Letter may be executed in counterparts which, taken together, shall constitute an original. Delivery of an executed counterpart of this Commitment Letter by telecopier, e-mail or facsimile shall be effective as delivery of a manually executed counterpart thereof. This Commitment Letter shall be governed by, and construed in accordance with, the laws of the State of New York. Each of you and the Lead Arrangers hereby irrevocably waives any and 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 Commitment Letter (including, without limitation, the Term Sheet), the Transaction and the other transactions contemplated hereby and thereby or the actions of the Lead Arrangers in the negotiation, performance or enforcement hereof. The commitments and undertakings of the Lead Arrangers may be terminated by us if you fail to perform your obligations under this Commitment Letter on a timely basis. This Commitment Letter, together with the Term Sheet, embodies the entire agreement and understanding among the Lead Arrangers, you, and your affiliates with respect to the Additional Credit Facilities and supersedes all prior agreements and understandings relating to the specific matters hereof. However, please note that the terms and conditions of the commitment and undertakings of the Lead Arrangers hereunder are not limited to those set forth herein or in the Term Sheet. Those matters that are not covered or made clear herein or in the Term Sheet are subject to mutual agreement of the parties. No party has been authorized by the Lead Arrangers to make any oral or written statements that are inconsistent with this Commitment Letter. This Commitment Letter is not assignable by you without our prior written consent and is intended to be solely for the benefit of the parties hereto and the Indemnified Parties. This Commitment Letter shall not be amended or modified except in writing signed by all parties hereto. This Commitment Letter and all commitments and undertakings of the Lead Arrangers hereunder will expire at 5:00 p.m. (New York City time) on April 28, 2006 unless you execute this Commitment Letter and return it to us prior to that time. Thereafter, all commitments and undertakings of the Lead Arrangers hereunder will expire on the earlier of (a) 60 days after the date of this letter, unless the definitive documents for the financing of the Transaction have been executed and delivered, and (b) the acceptance by you or any of your affiliates of an offer for all or any substantial part of the capital stock or property and assets of the Borrower and their subsidiaries other than as part of the Transaction. In consideration of the time and resources that the Lead Arrangers will devote to the Additional Credit Facilities, you agree that, until such expiration, you will not solicit, initiate, entertain or permit, or enter into any discussions in respect of, any offering, placement or arrangement of any competing senior credit facilities for the Borrower and their subsidiaries with respect to the matters addressed in this letter. [THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK] We are pleased to have the opportunity to work with you in connection with this important financing. Very truly yours, MIZUHO CORPORATE BANK, LTD. By: /s/ Takeo Kada ------------------------------------ Name: Takeo Kada Title: Deputy General Manager ACCEPTED AND AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN: MACQUARIE INFRASTRUCTURE COMPANY INC. (D/B/A MACQUARIE INFRASTRUCTURE COMPANY (US)) By: /s/ Peter Stokes --------------------------------- Name: Peter Stokes Title: Chief Executive Officer We are pleased to have the opportunity to work with you in connection with this important financing. Very truly yours, THE GOVERNOR AND COMPANY OF BANK OF IRELAND By: /s/ A.K.C. Hartley ------------------------------------ Name: A.H.C. Hartley Title: Head of Infrastructure Project Finance By: /s/ [illegible] ------------------------------------ Name: [illegible] Title: [illegible] ACCEPTED AND AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN: MACQUARIE INFRASTRUCTURE COMPANY INC. (D/B/A MACQUARIE INFRASTRUCTURE COMPANY (US)) By: /s/ Peter Stokes --------------------------------- Name: Peter Stokes Title: Chief Executive Officer We are pleased to have the opportunity to work with you in connection with this important financing. Very truly yours, BAYERISCHE LANDESBANK, NEW YORK BRANCH By: /s/ Thomas Augustin ------------------------------------ Name: Thomas Augustin Title: Vice President By: /s/ George J. Schnept ------------------------------------ Name: George J. Schnept Title: Vice President ACCEPTED AND AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN: MACQUARIE INFRASTRUCTURE COMPANY INC. (D/B/A MACQUARIE INFRASTRUCTURE COMPANY (US)) By: /s/ Peter Stokes --------------------------------- Name: Peter Stokes Title: Chief Executive Officer EXHIBIT A INDICATIVE SUMMARY OF TERMS AND CONDITIONS APRIL 18, 2006 The terms and conditions contained in the documents in respect of the existing Loan Agreement will apply equally to this transaction, subject only to those variations and amendments which are expressly identified in this Indicative Summary of Terms and Conditions. Capitalized expressions in this document which are not otherwise defined are to be attributed the same meaning as provided in Appendix A to the existing Loan Agreement. II. THE PARTIES 1. Borrower North America Capital Holding Company ("NACH") whose sole business is the ownership of entities ("Project Entities") that operate Fixed Base Operations (FBO's), and manage airports, and is seeking to acquire Trajen Holdings, Inc. ("Trajen"). 2. Purpose To amend the existing $305 million Loan Agreement dated December 12, 2005 (the "existing Loan Agreement") and to provide an additional $180 million of term loan debt needed to fund a portion of the acquisition price of Trajen and related acquisition costs. 3. Equity Investor Macquarie FBO Holdings LLC, a Delaware limited liability company, indirectly 100% owned by Macquarie Infrastructure Company Trust, a New York Stock Exchange listed entity ("MIC"). 4. Lead Arrangers Mizuho Corporate Bank, Ltd, Bayerische Landesbank, New York Branch and Bank of Ireland 5. Co Lead Arranger Macquarie Bank Limited ("MBL") 6. Syndication Agent Bayerische Landesbank, New York Branch 7. Administrative Agent Mizuho Corporate Bank, Ltd. 8. Documentation Agent Bank of Ireland
9. Senior Lenders Lead Arrangers and other banks or financial institutions to whom the Facilities may be syndicated. 10. Initial Lenders Each Lead Arranger and each Co-Lead Arranger 11. Revolving Loan Lender Mizuho Corporate Bank, Ltd. 12. Legal Advisor Orrick, Herrington & Sutcliffe LLP 13. Other Consultants Technical: Leigh Fisher Associates (a division of Jacobs Consulting Inc.) Environmental: Environmental Strategies Consulting Insurance: Moore-McNeil, LLC II. THE FACILITIES 14. The Facilities The Facilities will consist of the following: (iv) Term Loan Facility of $300,000,000, 100% of which was drawn on December 14, 2005, plus amounts funded under the Delayed Draw Acquisition Facility; (v) Delayed Draw Acquisition Facility up to $180,000,000. (vi) Revolving Credit Facility of $5,000,000. The Delayed Draw Acquisition Facility will be used to partially finance the acquisition of Trajen. TERM LOAN FACILITY 15. Use of Proceeds The Term Loan was used to refinance existing debt of NACH and MANA, pay for any costs and expenses associated with the borrowing and finance a distribution to Equity Investor. 100% of the Term Loan Proceeds were drawn on December 14, 2005. 16. Term Loan Maturity Date December 12, 2010. 17. Closing Date December 12, 2005 DELAYED DRAW ACQUISITION FACILITY 18. Use of Proceeds The Delayed Draw Acquisition Facility is available to acquire 100% of the equity in Trajen. 19. Drawdown Advances under the Delayed Draw Acquisition Facility may be made in a single distribution up to the full amount of the Delayed Draw Acquisition Facility. 20. Repayment Advance under the Delayed Draw Acquisition Facility will be
classified as part of the Term Loan Facility, and, for the avoidance of doubt, are subject to the same repayment terms and conditions as those applicable to the Term Loan Facility. All amounts outstanding under the Term Loan Facility (including advances made under the Delayed Draw Acquisition Facility) shall be due and payable pari passu in full on the Maturity Date. 21. Termination of Delayed Unused commitments under the Delayed Draw Draw Acquisition Acqusition Facility will be terminated on the Facility earlier of (i) the day of a partial draw down of the Facility or (ii) December 31, 2006. 22. Amendment Closing Date [May 31, 2006] REVOLVING CREDIT FACILITY 23. Use of Proceeds Borrower may utilize the Revolving Credit Facility for Letters of Credit and working capital requirements. 24. Maturity Date Term Loan Maturity Date. 25. Closing Date December 12, 2005. 26. Drawdown Advances under the Revolving Credit Facility may be made, and Letters of Credit may be issued, on a revolving basis up to the full amount of the Revolving Credit Facility. 27. Prepayment Prepayments of the Revolving Credit Facility are permitted without penalty on any Interest Payment Date upon not less than three (3) days prior written notice to the Revolving Loan Lender. Optional Prepayments of the Revolving Credit Facility must be made in a minimum amount of $100,000 and in increments of $50,000. All amounts outstanding under the Revolving Credit Facility shall be due and payable in full on the Maturity Date. IV. THE CREDIT FACILITIES 28. Mandatory Prepayment The Borrower shall promptly make Mandatory Prepayments in the following situations. The Mandatory Prepayments shall be applied to the Loans, including any amounts added to the Term Loan Facility due to draws under the Delayed Draw Acquisition Facility. i. If any insurance or condemnation proceeds (other than business interruption insurance) are not used for reconstruction, Borrower will prepay that amount of the Loans, without penalty, subject to appropriate materiality tests. ii. If, during any fiscal year, any net proceeds from a sale of the
Borrower's or its subsidiary's property that is not used to purchase replacement assets exceeds $250,000, Borrower will prepay the Loans in the amount of such excess. iii. If Borrower or its subsidiaries incurs debt for borrowed money that is not permitted indebtedness, 100% of the net debt proceeds will be applied to prepay the Loans. iv. If Borrower or its subsidiaries sells or issues equity securities (other than any issuance or sale to fund expansion capital expenditures or to prepay Loans in the event described in paragraph vi below, or certain intercompany issuances), 100% of the net equity proceeds will be applied to prepay the Loans. v. The proceeds of any termination payment or similar compensation received in respect of the termination of any FBO Lease, management contract or the heliport contract will be applied to prepay the Loans. vi. If one or more Distribution Requirements are not satisfied for two consecutive Distribution Dates following a deposit of Excess Cash Flow to the Special Reserve Account as described in Section 31 below. vii. If, during the Leverage Ratio Test Period, the Debt to EBITDA Ratio (as defined below) is higher than amounts set out below Borrower will be required to sweep all cash to pay down the Loans until the following ratios have been achieved. Failure to achieve the following ratios within two quarters after the test date shall result in an Event of Default: Date of Debt to EBITDA Ratio test Maximum ratio --------------------------------- ------------- From the third anniversary of term loan drawdown To fourth anniversary: 5.5x From the fourth anniversary of term loan drawdown To six months prior to Maturity Date: 5.0x From six months prior to Maturity Date To full repayment: 4.5x In all cases the debt repayment can be made from cash on hand or additional equity injection from Equity Investor. 29. Optional Prepayment Prepayments of the Term Loan Facility are permitted without penalty (subject to the payment of any break funding costs incurred, including reversing interest rate hedging transactions) upon at least five Business Days written notice. Optional Prepayments of the Term Loan Facility must be made in a minimum amount of $1,000,000 and in increments of $500,000. Amounts repaid under the Term Loan Facility may not be redrawn.
30. Mandatory Debt Service Interest, Commitment Fee, Agency Fee and periodic scheduled hedging obligations payable by the Borrower will be considered Mandatory Debt Service. 31. Restricted Payments Borrower may make quarterly distributions (within (Lock-Up) 35 days following each quarterly payment date) so long as the following conditions (together the "Distribution Requirements") have been met: i. The DSCR for the preceding twelve month period is 1.50 or higher; ii. The DSCR for the subsequent twelve month period is projected to be 1.50 or higher; iii. Debt Service Reserve Account is fully funded; iv. During the EBITDA Test Period, no failure of the Applicable Minimum EBITDA has occurred and no Lock-Up Period is outstanding; v. Mandatory Prepayments have been made; and, vi. No Default or Event of Default exists. In the event that distributions are not permitted due to failure to achieve the Distribution Requirements, then monies which would have been distributed absent such failures will be deposited and trapped in the Special Reserve Account. Following such deposit, if on each of the next succeeding two (2) Distribution Dates the Distribution Requirements are not satisfied, then all monies which have been on deposit in the Special Reserve Account for at least six (6) months shall be applied to a Mandatory Prepayment of the Term Loan Facility. All monies on deposit in the Special Reserve Account (and not required to make a Mandatory Prepayment in accordance with the preceding sentence) shall be available for distribution if the Distribution Requirements are satisfied for each of the succeeding two Distribution Dates. 32. Applicable EBITDA At each distribution date during the period from Minimum the Term Loan Disbursement Date through December 31, 2008 (the "EBITDA Test Period"), trailing 12 month EBITDA (on a pro forma basis, as if all facilities had been owned for the full twelve months) shall exceed the following levels: Year Minimum EBITDA ---- -------------- 2006 $66.9 million 2007 $71.9 million 2009 $77.5 million 33. Collateral The Facilities are, among other things, secured by a grant of first priority security interest in the following property (subject to acceptable encumbrances): i. Project Revenues (including all income, revenues, all interest
earned on deposits and reserves, rates, fees, charges, rentals, or other receipts derived by or related to the operations of the Borrower and its subsidiaries, and any revenues assigned to the Borrower and its subsidiaries and proceeds of the sale or other disposition of all or any part of the Borrower's or its subsidiaries' assets ("Project Revenues"), project accounts and cash therein, including the Debt Service Reserve Account. ii. (A) Pledge of shares of the Borrower and (B) as and to the extent permitted under the terms of the applicable FBO Leases and other airport services contracts, pledge of shares of each of the subsidiaries of the Borrower. [The Borrower will make all reasonable efforts to obtain the consent of the airport authorities to the extent such consent is required under the applicable FBO lease or airport management contract to pledge the subsidiary's shares. If, despite such efforts, the Borrower is unable to obtain all relevant consents, including from the airport authority of Brainard-Hartford Airport for the pledge of shares of the Connecticut subsidiaries within 30 days after the Amendment Closing Date, such subsidiaries will be directly and wholly-owned by a single purpose affiliate whose shares will be pledged.] iii. Security interest in substantially all assets of the business, including, all management contracts and FBO leases, all other material agreements and rights to receive Project Revenues (including fuel contracts, subleases, service agreements, employment agreements), licenses, equipment and machinery, inventory (including jet fuel) and account receivables and intellectual property (including the "Atlantic Aviation" brand name, the "Trajen" trademark and any other acquired intellectual property) whether existing at the Amendment Closing Date or thereafter acquired, and the proceeds thereof. Note that under most of the FBO leases, prior consent of the airport authority is required to collaterally assign the FBO leases, and the Borrower is obligated to use commercially reasonable efforts to obtain consents from the airport authorities. v. Insurance policies and any claims or proceeds. 34. Hedging Requirements Borrower is required to enter into interest rate hedges or novation arrangements with the swap providers from the original financings at financial close for at least 100% of the Term Loan Facility and Delayed Draw Acquisition Facility interest rate exposure, for the remaining term of the Term Loan Facility and Delayed Draw Acquisition Facility. All hedging payments will rank pari-passu with the Facilities. 35. Representations and Includes: Warranties i. Valid existence of Borrower; ii. Due authorization of Borrower; iii. Governing law, enforcement of judgments, validity and
admissibility; iv. No default; v. Consolidated financial statements of Borrower and its subsidiaries are in accordance with its books and records and GAAP; vi. Funding of pension plans and compliance with ERISA; vii. Payment of taxes (subject to customary contest rights); viii. No material pending or threatened uninsured litigation; ix. Ownership of or leasehold interest in assets; x. No breach of environmental or other laws in any material respect (subject to customary contest rights); xi. No other business; xii. Insurance coverage is in line with prudent market practice; xiii. All consents, filings, and licenses etc. required for conduct of business have been obtained and are in full force and effect; xiv. No indebtedness for borrowed money other than permitted indebtedness; xv. Effectiveness, enforceability of material agreements; xvi. Creation, perfection and first priority of liens (except permitted liens); xvii. Solvency; xviii. No Material Adverse Effect; xix. Due authorization and valid issuance of all outstanding equity interests of Borrower and its subsidiaries; xx. Non-deferred payment of purchase price for aviation fuel at prevailing market prices at time of delivery; and xxi. Accuracy of information furnished. 36. Conditions Precedent Usual and customary Conditions Precedent to signing of the amended loan documentation include, but are not limited to, delivery of legal opinions satisfactory to Lead Arrangers, delivery of satisfactory executed Purchase and Sale Agreement ("PSA") between NACH and the shareholders of Trajen, payment of all Amendment Fees (as set forth in the fee letter attached as Exhibit B to the Commitment Letter), no Default or Event of Default shall have occurred and be continuing and execution, delivery of consultants' reports and audited financial statements of Trajen and its subsidiaries that are not materially different from those received by the Lead Arrangers as of the date of the Commitment Letter, and delivery of documentation satisfactory to the Lead Arrangers. Conditions Precedent to Advances under the Delayed Draw Acquisition Facility, include but are not limited to, delivery of revised base case projections, operating budget and pro forma balance sheet reflecting the contemplated acquisition, in a form consistent with those already provided to the Lead Arrangers
and with financial projections not materially different from the financial model dated March 31, 2006 delivered to the Lead Arrangers, payment of the Underwriting Fees and Arrangement Fees (each as set forth in the fee letter attached as Exhibit B to the Commitment Letter), all third party consents and approvals, certification that all conditions of PSA have been met, evidence of payment of acquisition purchase price and repayment in full of all existing indebtedness of Trajen and all related liens released, funding of the debt service reserve, all pledges of security in Trajen and its subsidiaries' assets and equity interests be in full force and effect (with local opinions as necessary), executed joinder agreements to the Subsidiary Guarantee and Contribution Agreement by Trajen and its subsidiaries, all representations and warranties shall be true, correct and accurate, absence of certain changes (as defined in the PSA), delivery of legal opinions satisfactory to Lead Arrangers, no Default or Event of Default shall have occurred and be continuing and no Default or Event of Default will result from the acquisition, no Material Adverse Effect (as such term is defined in the PSA) arising out of the assets or property (owned or leased), contracts, governmental authorizations, labor events or business relationships of Trajen and its subsidiaries has occurred or is reasonably expected to occur since the signing of the amended loan documentation, and funding by MIC of a minimum of $175 million of equity. 37. Undertakings Positive and negative undertakings given by the Borrower as set forth in the existing Loan Agreement and in customary form for transactions of this nature with appropriate adjustments being made to account for the addition of the Delayed Draw Acquisition Facility, including without limitation appropriate materiality tests, permitted exceptions and, where appropriate, de minimis provisions. 38. Event of Default Includes: i. Non-payment (with 3 Business Days grace for interest and other non-principal amounts); ii. Failure by the Borrower to comply with covenants relating to inspections of the property and offices of the Borrower and its Subsidiaries, Use of Proceeds; insurance, a default under any Subsidiary Guaranty or other Security Document, legal existence and good standing of the Borrower and its Subsidiaries, hedging arrangements, compliance with legal requirements and contractual obligations, provision of Additional Collateral, its obligations in respect of New Subsidiaries and all Negative Covenants; iii. Default by the Borrower or any other Loan Party in performance or breach of other obligations or undertakings under any Loan Document not remedied within a 30-day
remedy period for affirmative covenants (extendable for longer period granted at Administrative Agent's discretion if remedy cannot be accomplished in 30 days and is being diligently pursued and extension does not result in a Material Adverse Effect); iv. Any representation or warranty made by the Borrower or any other Loan Party being untrue in any respect which will or may have a Material Adverse Effect; v. Cross-default by the Borrower or any of its Subsidiaries with respect to any other debt (other than in respect of any subordinated debt) subject to materiality threshold of $500,000; vi. Bankruptcy and insolvency events involving the Borrower or any of its Subsidiaries; vii. Failure of Borrower or its subsidiaries to pay unstayed and uninsured judgments in excess of $500,000 within 30 days; viii. Change of business; ix. Any insurance required is terminated, ceases to be valid or is amended so as to have a Material Adverse Effect unless substantially similar cover (and which is otherwise in compliance with the Borrower's insurance covenants) replaces such insurance; x. Nationalization, condemnation or government taking without fair value being paid therefor (so to allow replacement of such property or prepayment of the Obligations); xi. Required authorizations are revoked or terminated (unless reinstated within 10 days or such longer period as necessary so long as such event could not reasonably be expected to have a Material Adverse Effect and Borrower is diligently pursuing reinstatement); xii. The Borrower or any of its Subsidiaries fails to comply with applicable laws, including all applicable environmental laws, that will result in a Material Adverse Effect; xiii. Backward DSCR is less than or equal to 1.20 as of the end of any quarter; xiv. Change of Control; xv. Failure to perform any Material Contract (subject to 30 day remedy period or such longer period granted at the Administrative Agent's discretion if remedy cannot be accomplished in 30 days and is being diligently pursued and extension does not result in a Material Adverse Effect); provided that failure on the part of a party other than the Borrower or its subsidiaries is an Event of Default only if such failure has Material Adverse Effect; xvi. Inappropriate use of, or withdrawal of funds from, project accounts by the Borrower or any party to a Material Contract; xvii. Default under the Subsidiary Guaranty or any other Security Document; xviii. Any Loan Document ceases to be in full force and effect; or Security ceases to be effective as first priority security (subject to Permitted Liens); or the issuance of any equity securities are not subject to first priority, perfected lien;
xix. Any reportable ERISA event; xx. Any Material Contract ceases to be in full force and effect, or is terminated prior to the scheduled expiration date, or any material provision thereof is declared null and void; xxi. Abandonment of business at any airport for 30 days; or xxii. Any event of condition involving financial impact to the Borrower of its Subsidiaries in excess of $10 million that could have a Material Adverse Effect. An Event of Default in (xv), (xx) or (xxi) above that affects an FBO or FBOs (other than the fifteen largest FBO contributors of EBITDA) may be cured prior to acceleration of the Loans by prepayment of that portion of the Loan Facility that corresponds to the highest of the projected, actual or preceding three-year average EBITDA contribution of the affected FBO(s). Such prepayment will release the affected FBO(s) from the Loan Documents. This method of cure may be exercised only once during the term of the Loans, and only if the proportional EBITDA contribution of the affected FBO(s) does not exceed 5% of aggregate EBITDA. IV. INTEREST RATE AND FEES 39. Interest Rate The Facilities will bear interest at one, two, three or six month LIBOR plus the Applicable Margin. 40. Applicable Margin Years 1 to 3: 1.75%; Years 4 to 5: 2.00%. 41. Interest Payment Date Interest will be paid in arrears on the last day of each Interest Period, except in the case of a six month Interest Period, where interest will also be paid three months from the start of the Interest Period. 42. Interest Period One, two, three or six months. 43. Default Rate Interest Rate plus 2% per annum. 44. Commitment Fee 0.50% per annum of the undrawn portion of the Facilities, including the Delayed Draw Acquisition Facility, payable on any Interest Payment Date. The Commitment Fee will accrue in arrears from the Closing Date. V. FLOW OF FUNDS 45. Priority of Payments Following each Interest Payment Date, after payment of operating expenses, taxes and required capital expenditures then due and payable, payments for the following amounts shall be made in the following order of priority: i. Fees and expenses due to the Lead Arrangers and Senior Lenders; ii. Interest on the Term Loan Facility, the Revolving Credit
Facility and the Delayed Draw Acquisition Facility, as well as any periodic scheduled hedging obligations; iii. Mandatory Prepayments of the Loans; iv. Any required payments to the Debt Service Reserve Account; v. Optional Repayment and any hedging termination obligations payable as a result of such repayment; vi. Any payments (if applicable) to the Special Reserve Account; vii. Distributions to Equity Investor. 46. Debt Service Reserve Borrower shall maintain a Debt Service Reserve Account Account in an amount equal to six months of Mandatory Debt Service payable under the Facilities. The Debt Service Reserve Account shall be fully funded on the Closing Date. Alternatively, a letter of credit by a financial institution rated at least A-/A3 may be posted for the benefit of the Senior Lenders on the Closing Date. VI. RATIOS 47. Debt Service Coverage The Debt Service Coverage Ratio ("DSCR") for a Ratio particular period will be calculated on a quarterly basis as the ratio of (a) Net Cash Flow for the twelve-month period ending on the respective calculation date to (b) Mandatory Debt Service for the twelve-month period ending on the respective calculation date. 48. Debt to EBITDA Ratio The Debt to EBITDA Ratio as of a particular date will be calculated as the ratio of (a) total amount of Facilities outstanding to (b) earnings before interest, tax, depreciation and amortization. 49. Net Cash Flow "Net Cash Flow" means, in respect of any period, (a) aggregate Project Revenues received during such period plus additional equity contributions during such period not used to pay for expansion capital expenditures, less (b) the operating expenses, maintenance capital expenditure and taxes paid during such period, but excluding any expansion capital expenditures funded with distributed amounts or equity contributions or financed with permitted debt, non-cash charges, interest and principal payments on the loans, distributions, investments, costs paid by insurance proceeds, and employee phantom stock ownership plan payments. VII. GENERAL 50. Reporting requirements viii. Annual audited Financial Statements no later of the Borrower than 90 days after close of each fiscal year; ix. Quarterly Financial Statements no later than 45 days after close of each fiscal quarter; x. Contemporaneously with delivery of (i) and (ii): a compliance certificate stating that an Event of Default has not occurred, or if an Event of Default has occurred and is continuing (and assuming the Administrative Agent has agreed in its discretion
to extend the cure period), a statement as to the nature thereof and proposed cure remedies; xi. a certificate stating all expansion capital expenditures during the previous quarter and the source of funds for such expenditures; xii. Monthly operating reports no later than 30 days after close of each month; xiii. EBITDA certificate no later than 30 days after close of each fiscal quarter during the EBITDA Test Period, certifying the EBITDA for the twelve-month period; xiv. Debt to EBITDA Ratio certificate no later than 30 days after close of each fiscal quarter during the Leverage Ratio Test Period, certifying the Debt to EBITDA Ratio for the twelve-month period; and xv. DSCR certificate no later than 30 days after the close of each fiscal quarter, certifying the DSCR for the twelve-month period. 51. Governing Law The documentation is governed by New York law, venue shall be in New York County, and contains a waiver of jury trial.
