EXHIBIT 10.2
EXECUTION COPY
$1,000,000,000.00 Amended and Restated
3-Year Credit Agreement
dated as of
January 17, 2002
among
INTERNATIONAL LEASE FINANCE CORPORATION,
THE BANKS (as defined herein),
CITICORP USA, INC.,
as Administrative Agent,
and
XXXXXXX XXXXX XXXXXX INC.,
as Arranger and Book Manager
AMENDED AND RESTATED
3-YEAR REVOLVING CREDIT AGREEMENT
AMENDED AND RESTATED 3-YEAR REVOLVING CREDIT AGREEMENT (this
"Agreement") dated as of January 17, 2002 among INTERNATIONAL LEASE FINANCE
CORPORATION, a California corporation (the "Company"), the financial
institutions listed on the signature pages hereof (herein, together with their
respective successors and assigns, collectively called the "Banks" and
individually each called a "Bank") and CITICORP USA, INC. (herein, in its
individual capacity, together with it successors and assigns, called "CUSA"), as
agent for the Banks (herein, in such capacity, together with is successors and
assigns in such capacity, called the "Agent").
The Company, the Agent and certain Banks are parties to a 5-year
Revolving Credit Agreement dated as of January 17, 1997 (as modified, amended
and in effect on the date hereof, the "Existing Credit Agreement").
The Company has requested that the Existing Credit Agreement be amended
to, among other things, decrease the Aggregate Commitment from $1,250,000,000 to
$1,000,000,000, extend the Termination Date, add The Governor and Company of the
Bank of Scotland, ABN AMRO Bank N.V., Lloyds TSB Bank Plc and Xxxxxx Commercial
Paper Inc. (each a "New Bank") as a "Bank" under the Existing Credit Agreement
and modify certain other provisions thereof, all as set forth herein, and that
the Existing Credit Agreement be restated in its entirety as so amended, all as
of the Restatement Effective Date (as hereinafter defined).
Accordingly, the parties hereto agree as follows:
SECTION 1.01. DEFINITIONS; INTERPRETATION. Capitalized terms used but
not otherwise defined herein have the respective meanings ascribed thereto in
the Existing Credit Agreement. The provisions hereof shall be deemed to have
effect from the Restatement Effective Date without retroactive effect.
SECTION 1.02. AMENDMENTS. Effective as of the Restatement Effective
Date, the Existing Credit Agreement is amended as follows and, as so amended, is
hereby restated in its entirety:
(1) The references on the cover page and in the recitals of the Existing
Credit Agreement, in the definition of "Aggregate Commitment" in Section 1.2 of
the Existing Credit Agreement and in each Exhibit to the Existing Credit
Agreement to the aggregate amount of the Commitments are amended to refer to the
aggregate amount of $1,000,000,000, and Schedule I to the Existing Credit
Agreement is amended to read in its entirety in accordance with Schedule I
hereto.
(2) The reference to "fifth anniversary" in the definition of
"Termination Date" in Section 1.2 of the Existing Credit Agreement is amended to
read "third anniversary".
(3) (a) The reference to "Section 6.4(b)" in Section 13.4.1 of the
Existing Credit Agreement is amended to read "Section 6.4(b) and in Section
6.4(c)", and the reference to "Sections 7.1, 7.4, 13.5 and 13.6" in Section
13.4.2 of the Existing Credit Agreement is amended to read "Sections 6.4(b),
6.4(c), 7.1, 7.4, 13.5 and 13.6".
(b) Section 6.4 of the Existing Credit Agreement is amended to read in
its entirety as follows:
Section 6.4. Taxes, etc. (a) All payments made by the Company to
the Agent, any Bank, any Assignee or any Participant under this Agreement
and the Notes shall be made without any set-off or counterclaim, and free
and clear of and without deduction for or on account of any present or
future Taxes now or hereafter imposed (except to the extent that such
withholding or deduction is compelled by law or results from the breach, by
the recipient of a payment, of its agreement contained in Section 6.4(b) or
6.4(c) or would not be required if the representation or warranty contained
in Section 6.4(b) were true), excluding any Taxes generally assessed on the
overall net income of the Agent, any Bank, any Assignee or any Participant,
as the case may be, by the government or other authority of the country in
which the Agent, such Bank, such Assignee or such Participant is
incorporated or in which its Funding Office or the office through which it
is acting is located. If the Company is compelled by law to make any such
deductions or withholdings it will:
(i) pay to the relevant authorities the full amount required to be
so withheld or deducted,
(ii) except to the extent that such withholding or deduction results
from the breach by the recipient of a payment of its agreement contained
in Section 6.4(b) or 6.4(c) or would not be required if the
representation or warranty contained in Section 6.4(b) were true, pay
such additional amounts as may be necessary in order that the net amount
received by the Agent, each Bank, each Assignee and each Participant
after such deductions or withholdings (including any required deduction
or withholding on such additional amounts) shall equal the amount such
payee would have received had no such deductions or withholdings been
made, and
(iii) promptly forward to the Agent (for delivery to such payee) an
official receipt or other documentation satisfactory to the Agent
evidencing such payment to such authorities.
Moreover, if any Taxes are directly asserted against the Agent, any Bank,
any Assignee or any Participant, such payee may pay such Taxes and the
Company shall promptly pay such additional amount (including, without
limitation, any penalties, interest or expenses) as may be necessary in
order that the net amount received by such payee after the payment of such
Taxes (including any Taxes on such additional amount) shall equal the amount
such payee would have received had no such Taxes been asserted (provided,
that the Agent, the Banks, and any Assignee or Participant shall use
reasonable efforts, to the
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extent consistent with applicable laws and regulations, to minimize to the
extent possible any such Taxes if they can do so without material cost or
legal or regulatory disadvantage). For purposes of this Section 6.4, a
distribution hereunder by the Agent or any Bank to or for the account of any
Bank, Assignee or Participant shall be deemed to be a payment by the
Company. The Company's agreement under this Section 6.4 shall survive
repayment of the Loans, cancellation of the Notes or any termination of this
Agreement.
(b) In consideration of, and as a condition to, the Company's
undertakings in Section 6.4(a), each Bank other than a Bank that is
organized and existing under the laws of the United States of America or any
State thereof (a "Non-U.S. Bank") agrees to execute and deliver to the Agent
at its Payment Office for delivery to the Company, before the first
scheduled payment date in each year, (i) to the extent it acts for its own
account with respect to any portion of any sums paid or payable to such Bank
under this Agreement, two original copies of United States Internal Revenue
Service Forms W-8BEN or W-8ECI (or any successor forms), as appropriate,
properly completed and duly executed by such Non-U.S. Bank, and claiming
complete exemption from withholding and deduction of United States federal
Taxes, and (ii) to the extent it does not act or has ceased to act for its
own account with respect to any portion of any sums paid or payable to such
Bank under this Agreement (for example, in the case of a typical
Participation by such Bank), (1) for the portion of any such sums paid or
payable with respect to which such Bank acts for its own account, two
original copies of the forms or statements required to be provided by such
Bank under subsection (i) of this Section 6.4(b), properly completed and
duly executed by such Non-U.S. Bank and claiming complete exemption from
withholding and deduction of United States federal Taxes, and (2) for the
portion of any such sums paid or payable with respect to which such Non-U.S.
Bank does not act or has ceased to act for its own account, two original
copies of United States Internal Revenue Service Form W-8IMY (or any
successor forms), properly completed and duly executed by such Non-U.S.
Bank, together with any information, if any, such Non-U.S. Bank chooses to
transmit with such form, and any other certificate or statement of exemption
required under the Internal Revenue Code or the regulations issued
thereunder. Each Bank represents and warrants to the Company that, at the
date of this Agreement, or at the time such Bank becomes a Bank hereunder
pursuant to Section 13.4.1 or 13.8(c), its Funding Office is entitled to
receive payments of principal and interest hereunder without deduction for
or on account of any Taxes imposed by the United States of America or any
political subdivision thereof.
(c) Each Non-US Bank hereby agrees, from time to time after the
initial delivery by such Non-U.S. Bank of any forms or other information
pursuant to Section 6.4(b), whenever a lapse in time or change in
circumstances renders such forms, certificates or other evidence so
delivered obsolete or inaccurate in any material respect, that such Non-U.S.
Bank shall promptly (and in all events, prior to the next applicable payment
date), deliver to Agent at its Payment Office for delivery to the Company
two original copies of any renewal, amendment or additional or successor
forms, properly completed and duly executed by such Non-U.S. Bank, together
with any other certificate or statement of exemption required by applicable
law or regulation in order to (i) confirm
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or establish such Non-U.S. Bank's complete exemption from withholding and
deduction of United States federal Taxes with respect to payments to such
Bank under this Agreement or (ii) in the case of a change in law after the
date on which such Non-U.S. Bank became a Bank hereunder pursuant to Section
13.4.1 that results in a withholding or deduction of United States federal
Taxes on payments hereunder to such Non-U.S. Bank, establish the status of
such Non-U.S. Bank as other than a United States person for United States
federal Tax purposes and claim the benefit of a reduced rate of withholding
and deduction of United States federal Taxes with respect to any such
payments under an applicable tax treaty of the United States, or (iii) if
applicable, confirm or establish that such Non-U.S. Bank does not act for
its own account with respect to any portion of any such payments.
(d) Nothing contained in this Section 6.4 shall require any Bank to
make available its tax returns (or any other information relating to its
taxes that it deems confidential) to the Company or any other Person.
(4) (a) Sections 4.5 and 4.6 of the Existing Credit Agreement are
renumbered as Sections 4.6 and 4.7, respectively, and references in the Existing
Credit Agreement to former Sections 4.5 and 4.6 shall be deemed to be references
to Sections 4.6 and 4.7, respectively.
(b) A new Section 4.5 is added to the Existing Credit Agreement in the
appropriate numerical place, such new Section to read in its entirety as
follows:
Section 4.5. Utilization Fee. The Company agrees to pay to the Agent
for the accounts of the Banks pro rata in accordance with their respective
Percentages, (i) during any period that the aggregate outstanding principal
amount of the Loans exceeds 33.33% of the Aggregate Commitment, a
utilization fee computed by multiplying the average daily amount of the
Aggregate Commitment by the applicable percentage determined with respect to
such utilization fee in accordance with Schedule II hereto and (ii) during
any period that the aggregate outstanding principal amount of the Loans
exceeds 66.66% of the Aggregate Commitment, a utilization fee computed by
multiplying the average daily amount of the Aggregate Commitment by the
applicable percentage determined with respect to such utilization fee in
accordance with Schedule II hereto; provided, that if the then outstanding
aggregate principal amount of Bid Loans exceeds an amount equal to 33.33% of
the Aggregate Commitments as then in effect, then in calculating the
aggregate outstanding principal amount of the Loans for purposes of this
Section 4.5 only, the aggregate outstanding principal amount of Loans shall
not include an amount equal to 33.33% of the Aggregate Commitments as then
in effect. Accrued utilization fees shall be due and payable on each date
that interest is payable on each such Loan.
(c) The first parenthetical of the proviso to Section 13.8(d) of
the Existing Credit Agreement is amended to read in its entirety as follows:
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(and, for purposes of calculating facility fees under Section 4.4,
utilization fees under Section 4.5 and determining the Required Banks
(except as provided below), but for no other purpose, such Terminating
Bank's Commitment shall continue until).
(5) The reference to "September 30, 1994" in the definition of
"Consolidated Tangible Net Worth" in Section 1.2 of the Existing Credit
Agreement is amended to read "December 31, 2000", and Section 9.12 of the
Existing Credit Agreement is amended to read in its entirety as follows:
Section 9.12. Consolidated Tangible Net Worth. Not permit the
Company's Consolidated Tangible Net Worth to be less than $2,750,000,000
minus, to the extent included in the calculation of Consolidated Tangible
Net Worth, other comprehensive income of the Company and its Subsidiaries
(or, in the case of a comprehensive income deficit, plus the amount of such
deficit) plus 50% of (a) the cumulative net income (but without deduction
for cumulative net losses) of the Company and its Subsidiaries since
December 31, 2000 determined on a consolidated basis in accordance with
United States of America generally accepted accounting principles, (b) the
cumulative equity capital contributions from AIG since December 31, 2000 and
(c) the net proceeds from the sale of preferred stock, in each case for the
period from December 31, 2000 to and including the date of any determination
hereunder.
(6) The reference to "one calendar year" in Section 13.8(a) of the
Existing Credit Agreement is amended to read "one calendar year, or such shorter
period as agreed upon by the Company and the Agent", and the reference to
"January 17 of the year immediately succeeding" in said Section 13.8(a) is
amended to read "the date one year after, or the last day of such shorter period
as agreed as provided above,".
(7) (a) The reference in the "Whereas" clause of the recitals of the
Existing Credit Agreement to "to enable the Company to support its commercial
paper program and for other general corporate purposes" is amended to read "for
general corporate purposes".
(b) Section 8.14 of the Existing Credit Agreement is amended to read in
its entirety as follows:
Section 8.14. Use of Proceeds. The proceeds of the Loans will be
used by the Company for general corporate purposes.
(c) Clause (d) of Section 9.16 of the Existing Credit Agreement is
amended to read in its entirety as follows:
(d) for any other purpose except for general corporate purposes
in the ordinary course of business.
(8) Schedule II to the Existing Credit Agreement is amended to read in
its entirety in accordance with Schedule II hereto.
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(9) Each New Bank shall be deemed to be a "Bank" under and for all
purposes of the Existing Credit Agreement as amended and restated hereby and
each reference in the Existing Credit Agreement as amended and restated hereby
to "Bank" shall be deemed to include each New Bank, and each New Bank shall have
a "Commitment" in the amount set opposite its name on Schedule II hereto.
SECTION 1.03. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Agent and the Banks as of the Restatement Effective Date that
each of the representations and warranties set forth in Section 8 of the
Existing Credit Agreement, as amended and restated hereby, is true on and as of
the Restatement Effective Date as if made on and as of the Restatement Effective
Date. The parties hereto agree that it shall be deemed an Event of Default under
Section 11.1.5 of the Credit Agreement, as amended and restated hereby, if the
representations and warranties contained in this Section 1.03 shall prove to
have been untrue or misleading in any material respect when made or deemed made.
SECTION 1.04. RESTATEMENT EFFECTIVE DATE. This Agreement shall become
effective on the date hereof (the "Restatement Effective Date") upon the
satisfaction prior to such date of the following conditions:
(a) Agreement. The Agent shall have received this Agreement duly
executed and delivered by each of the Banks and the Company and the
Agent shall have received a fully executed Committed Note and a fully
executed Bid Note for each Bank, and the Company shall have received
from each bank party to the Existing Credit Agreement its Committed Note
and Bid Note, each marked "Cancelled", or such other satisfactory
evidence of cancellation thereof.
(b) Evidence of Corporate Action. The Agent shall have received
certified copies of all corporate actions taken by the Company to
authorize this Agreement and the Notes.
(c) Incumbency and Signatures. The Agent shall have received a
certificate of the Secretary or an Assistant Secretary of the Company
certifying the names of the officer or officers of the Company
authorized to sign this Agreement, the Notes and the other documents
provided for in this Agreement to be executed by the Company, together
with a sample of the true signature of each such officer (it being
understood that the Agent and each Bank may conclusively rely on such
certificate until formally advised by a like certificate of any changes
therein).
(d) Good Standing Certificates. The Agent shall have received
such good standing certificates of state officials with respect to the
incorporation of the Company, or other matters, as the Agent or the
Banks may reasonably request.
(e) Opinions of Company Counsel. The Agent shall have received
favorable written opinions of O'Melveny & Xxxxx LLP, counsel for the
Company, in substantially the form of Exhibit G to the Existing Credit
Agreement (with appropriate modifications to reflect the amendment and
restatement thereof contemplated hereby and the elimination of
Regulation G), and the General Counsel of the Company, in substantially
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the form of Exhibit H to the Existing Credit Agreement (with appropriate
modifications to reflect the amendment and restatement thereof
contemplated hereby and changes to the list of the Company's
Subsidiaries).
(f) Opinion of Agent's Counsel. The Agent shall have received a
favorable written opinion of Milbank, Tweed, Xxxxxx & XxXxxx LLP,
special New York counsel to the Agent, with respect to documents
received by the Agent and the Banks and such legal matters as the Agent
reasonably may require.
(g) Other Documents. The Agent shall have received such other
certificates and documents as the Agent or the Banks reasonably may
require.
(h) Fees. The Agent shall have received for the account of the
Agent the Agent's fees payable to the Funding Date pursuant to Section
4.6 of the Existing Credit Agreement.
(i) Material Adverse Change. The Agent shall have received a
certificate of the Company's chief financial officer confirming that
since the date of the audited financial statements identified in Section
8.4 of the Existing Credit Agreement, there shall not have occurred any
material adverse change in the business, credit, operations, financial
condition or prospects of the Company and its Subsidiaries taken as a
whole.
SECTION 1.05. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that the
Company may not assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all the Banks.
(b) This Agreement shall be governed by and construed in accordance with
the law of the State of New York.
(c) This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures hereto
were upon the same instrument. This Agreement constitutes the entire agreement
and understanding among the parties hereto and supersede any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
Company: INTERNATIONAL LEASE FINANCE CORPORATION
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
Agent: CITICORP USA, INC., as Agent
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
Banks: CITICORP USA, INC.
By:
-------------------------------------
Name:
Title:
JPMORGAN CHASE BANK
By:
-------------------------------------
Name:
Title:
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.
By:
-------------------------------------
Name:
Title:
THE GOVERNOR AND COMPANY OF THE
BANK OF SCOTLAND
By:
-------------------------------------
Name:
Title:
ABN AMRO BANK N.V.
By:
-------------------------------------
Name:
Title:
SOCIETE GENERALE
By:
-------------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By:
-------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
-------------------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK
BRANCH
By:
-------------------------------------
Name:
Title:
LLOYDS TSB BANK PLC
By:
-------------------------------------
Name:
Title:
BARCLAYS BANK PLC
By:
-------------------------------------
Name:
Title:
THE SANWA BANK, LIMITED
By:
-------------------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.
By:
-------------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
-------------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By:
-------------------------------------
Name:
Title:
SANPAOLO IMI S.p.A.
By:
-------------------------------------
Name:
Title:
STANDARD CHARTERED BANK
By:
-------------------------------------
Name:
Title:
Schedule I
Schedule of Banks
BANK COMMITMENT
---- ----------
Citicorp USA, Inc. $120,000,000
JPMorgan Chase Bank $115,000,000
Commerzbank AG, New York and Grand Cayman $115,000,000
Branches
The Bank of Tokyo-Mitsubishi, Ltd. $115,000,000
The Governor and Company of the Bank $115,000,000
of Scotland
ABN AMRO Bank N.V. $80,000,000
Societe Generale $80,000,000
Westdeutsche Landesbank Girozentrale $60,000,000
The Bank of New York $40,000,000
Deutsche Bank AG New York Branch $30,000,000
Lloyds TSB Bank Plc $30,000,000
Barclays Bank Plc $20,000,000
The Sanwa Bank, Limited $20,000,000
Xxxxxx Commercial Paper Inc. $20,000,000
The Industrial Bank of Japan, Limited $10,000,000
The Dai-Ichi Kangyo Bank, Ltd. $10,000,000
SANPAOLO IMI S.p.A. $10,000,000
Standard Charted Bank $10,000,000
Schedule II
Fees and Margins
(in basis points)
Level I Level II Level III Level IV Level V Level VI
Pricing Pricing Pricing Pricing Pricing Pricing
------- -------- --------- -------- ------- --------
Facility Fee 9.0 10.0 11.0 12.5 15.0 20.0
Margins:
LIBOR 6.0 15.0 24.0 32.5 45.0 55.0
Base 0.0 0.00 0.0 0.0 0.0 0.0
Competitive As bid by As bid by As bid by As bid by As bid by As bid by
Bid Option the Banks the Banks the Banks the Banks the Banks the Banks
Utilization Fee
Rate:
In excess 5.0 5.0 5.0 5.0 5.0 10.0
of 33.33%
In excess 10.0 10.0 10.0 15.0 15.0 25.0
of 66.66%
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Pricing" means the pricing during any period during which the
Company's long-term senior unsecured debt is rated AA or higher by S&P or Aa2 or
higher by Moody's.
"Level II Pricing" means the pricing during any period during which (i)
the Company's long-term senior unsecured debt is rated AA- or higher by S&P or
Aa3 or higher by Moody's and (ii) Level I Pricing does not apply.
"Level III Pricing" means the pricing during any period during which (i)
the Company's long-term senior unsecured debt is rated A+ or higher by S&P or A1
or higher by Moody's and (ii) neither Level I Pricing nor Level II Pricing
applies.
"Level IV Pricing" means the pricing during any period during which (i)
the Company's long-term senior unsecured debt is rated A or higher by S&P or A2
or higher by Moody's and (ii) none of Level I Pricing, Level II Pricing and
Level III Pricing applies.
"Level V Pricing" means the pricing during any period during which (i)
the Company's long-term senior unsecured debt is rated A- or higher by S&P or A3
or higher by Moody's and (ii) none of Level I Pricing, Level II Pricing, Level
III Pricing and Level IV Pricing applies.
"Level VI Pricing" means the pricing during any period during which no
other Pricing Level applies.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor
corporation thereto.
"Pricing Level" means Level I Pricing, Level II Pricing, Level III
Pricing, Level IV Pricing, Level V Pricing and Level VI Pricing.
"S & P's" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor corporation thereto.
Any change in fees or margins by reason of a change in S&P's rating or
Xxxxx'x rating shall become effective on the date of announcement or publication
by the respective rating agencies of a change in such rating or, in the absence
of such announcement or publication, on the effective date of such changed
rating.
If S&P's rating and Xxxxx'x rating differ by more than one rating level,
then the applicable Pricing Level shall be one rating level higher than the
Pricing Level resulting from the application of the lower of such ratings.
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