CREDIT AGREEMENT
among
NORTHWEST AIRLINES CORPORATION,
NWA INC.,
NORTHWEST AIRLINES, INC.,
ABN AMRO BANK N.V.,
as Compliance Agent,
BANKERS TRUST COMPANY,
as Administrative Agent,
CHASE SECURITIES INC.,
as Syndication Agent,
CITIBANK, N.A.,
as Documentation Agent,
NATIONAL WESTMINSTER BANK PLC
and
FIRST BANK NATIONAL ASSOCIATION,
as Agents,
and
VARIOUS LENDING INSTITUTIONS
__________________________________
Dated as of December 15, 1995
and
Amended and Restated as of October 16, 1996
and further
Amended and Restated as of December 29, 1997
__________________________________
$1,000,000,000
TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit.. . . . . . . . . . . . . . . . . . . . . . .1
1.01 The Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.02 Minimum Amount of Each Borrowing, etc. . . . . . . . . . . . . . . . . . . . .4
1.03 Notice of Borrowing. . . . . . . . . . . . . . . . . . . . . . . . .4
1.03A Competitive Bid Borrowings. . . . . . . . . . . . . . . . . . . . .5
1.04 Disbursement of Funds. . . . . . . . . . . . . . . . . . . . . . . .7
1.05 Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
1.06 Conversions. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
1.07 Pro Rata Borrowings. . . . . . . . . . . . . . . . . . . . . . . . .9
1.08 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.09 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.10 Increased Costs, Illegality, etc . . . . . . . . . . . . . . . . . 12
1.11 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.12 Change of Lending Office . . . . . . . . . . . . . . . . . . . . . 15
1.13 Replacement of Banks . . . . . . . . . . . . . . . . . . . . . . . 15
1.14 Extension of SRL Commitment Expiration Date; Replacement of
Non-Extending Banks or Conversion of Supplemental Revolving
Loans into Supplemental Term Loans. . . . . . . . . . . . . . . . 16
SECTION 2. Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.01 Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . . . 17
2.02 Letter of Credit Requests. . . . . . . . . . . . . . . . . . . . . 18
2.03 Letter of Credit Participations. . . . . . . . . . . . . . . . . . 19
2.04 Agreement to Repay Letter of Credit Drawings . . . . . . . . . . . 20
2.05 Increased Costs. . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3. Fees; Reductions of Commitment . . . . . . . . . . . . . . . . . . . . 22
3.01 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.02 Voluntary Termination of Commitments . . . . . . . . . . . . . . . 23
3.03 Mandatory Reduction of Commitments . . . . . . . . . . . . . . . . 24
SECTION 4. Prepayments; Payments; Taxes . . . . . . . . . . . . . . . . . . . . . 24
4.01 Voluntary Prepayments. . . . . . . . . . . . . . . . . . . . . . . 25
4.02 Mandatory Repayments . . . . . . . . . . . . . . . . . . . . . . . 26
4.03 Method and Place of Payment. . . . . . . . . . . . . . . . . . . . 28
4.04 Net Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(i)
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SECTION 5.A. Conditions Precedent to Initial Credit Events. . . . . . . . . . . . 30
5A.01 Execution of Agreement; Notes . . . . . . . . . . . . . . . . . . 30
5A.02 Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . 30
5A.03 Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . . 31
5A.04 Corporate Documents; Proceedings; etc . . . . . . . . . . . . . . 31
5A.05 Consent Letter. . . . . . . . . . . . . . . . . . . . . . . . . . 31
5A.06 Adverse Change, etc . . . . . . . . . . . . . . . . . . . . . . . 31
5A.07 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5A.08 Financial Outlook . . . . . . . . . . . . . . . . . . . . . . . . 32
5A.09 Existing Credit Agreement . . . . . . . . . . . . . . . . . . . . 32
5A.10 Fees, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5A.11 Appraisal of Pool Assets. . . . . . . . . . . . . . . . . . . . . 32
SECTION 5B. Conditions Precedent to All Credit Events . . . . . . . . . . . . . . 33
5B.01 Notice of Borrowing; Letter of Credit Request; Notice of
Competitive Bid Borrowing . . . . . . . . . . . . . . . . . . . 33
5B.02 No Default; Representations and Warranties. . . . . . . . . . . . 33
SECTION 6. Representations, Warranties and Agreements . . . . . . . . . . . . . . 33
6.01 Corporate Status . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.02 Corporate Power and Authority. . . . . . . . . . . . . . . . . . . 34
6.03 No Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.04 Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . 34
6.05 Financial Statements; Financial Outlook. . . . . . . . . . . . . . 35
6.06 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.07 True and Complete Disclosure . . . . . . . . . . . . . . . . . . . 35
6.08 Use of Proceeds; Margin Regulations. . . . . . . . . . . . . . . . 36
6.09 Compliance with ERISA. . . . . . . . . . . . . . . . . . . . . . . 36
6.10 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.11 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . 37
6.12 Compliance with Statutes, etc. . . . . . . . . . . . . . . . . . . 37
6.13 Air Carrier. . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 7. Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . . . . . 37
7.01 Information Covenants. . . . . . . . . . . . . . . . . . . . . . . 37
7.02 Books, Records and Inspections . . . . . . . . . . . . . . . . . . 39
7.03 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.04 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.05 Consolidated Corporate Franchises. . . . . . . . . . . . . . . . . 40
7.06 Compliance with Statutes, etc. . . . . . . . . . . . . . . . . . . 40
7.07 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.08 Good Repair. . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.09 End of Fiscal Years; Fiscal Quarters . . . . . . . . . . . . . . . 41
(ii)
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7.10 Performance of Obligations . . . . . . . . . . . . . . . . . . . . 41
7.11 Air Carrier. . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 8. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.01 Changes in Business. . . . . . . . . . . . . . . . . . . . . . . . 42
8.02 Consolidation, Merger, etc . . . . . . . . . . . . . . . . . . . . 42
8.03 Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.04 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.05 Distributions, etc . . . . . . . . . . . . . . . . . . . . . . . . 44
8.06 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
8.07 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . 48
8.08 Limitation on Pool Assets. . . . . . . . . . . . . . . . . . . . . 48
8.09 Consolidated Indebtedness to Consolidated EBITDAR. . . . . . . . . 50
8.10 Consolidated EBITDAR to Consolidated Fixed Charges . . . . . . . . 50
8.11 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.12 LAX TWO CORP . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 9. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . 50
9.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
9.02 Representations, etc . . . . . . . . . . . . . . . . . . . . . . . 51
9.03 Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.04 Default Under Other Agreements . . . . . . . . . . . . . . . . . . 51
9.05 Bankruptcy, etc. . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.06 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.07 Judgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.08 Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10. Definitions and Accounting Terms. . . . . . . . . . . . . . . . . . . 54
10.01 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 11. The Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
11.01 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
11.02 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . . . . 73
11.03 Lack of Reliance on any Agent. . . . . . . . . . . . . . . . . . . 74
11.04 Certain Rights of each Agent . . . . . . . . . . . . . . . . . . . 74
11.05 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
11.06 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . 74
11.07 Each Agent in its Individual Capacity. . . . . . . . . . . . . . . 75
11.08 Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
11.09 Resignation by the Agents. . . . . . . . . . . . . . . . . . . . . 75
SECTION 12. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
12.01 Payment of Expenses, etc . . . . . . . . . . . . . . . . . . . . . 76
(iii)
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12.02 Right of Setoff. . . . . . . . . . . . . . . . . . . . . . . . . . 77
12.03 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
12.04 Benefit of Agreement . . . . . . . . . . . . . . . . . . . . . . . 77
12.05 No Waiver; Remedies Cumulative . . . . . . . . . . . . . . . . . . 78
12.06 Payments Pro Rata. . . . . . . . . . . . . . . . . . . . . . . . . 79
12.07 Calculations; Computations . . . . . . . . . . . . . . . . . . . . 79
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . 80
12.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
12.10 Effectiveness. . . . . . . . . . . . . . . . . . . . . . . . . . . 81
12.11 Headings Descriptive . . . . . . . . . . . . . . . . . . . . . . . 81
12.12 Amendment or Waiver; etc . . . . . . . . . . . . . . . . . . . . . 82
12.13 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
12.14 Domicile of Loans. . . . . . . . . . . . . . . . . . . . . . . . . 83
12.15 Limitation on Additional Amounts, etc. . . . . . . . . . . . . . . 83
12.16 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . 83
12.17 Registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
12.18 Addition of New Banks; Conversion of Existing Loans
of Continuing Banks; Termination of Commitments of
Non-Continuing Banks . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 13. Guaranty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
13.01 The Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
13.02 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
13.03 Nature of Liability. . . . . . . . . . . . . . . . . . . . . . . . 86
13.04 Independent Obligation . . . . . . . . . . . . . . . . . . . . . . 86
13.05 Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . . 87
13.06 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
13.07 Subordination. . . . . . . . . . . . . . . . . . . . . . . . . . . 87
13.08 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
13.09 Limitation on Enforcement. . . . . . . . . . . . . . . . . . . . . 88
SCHEDULE I Commitments
SCHEDULE II Bank Addresses
SCHEDULE III Existing Letters of Credit
SCHEDULE IV Subsidiaries
SCHEDULE V Existing Indebtedness
SCHEDULE VI Pool Assets
EXHIBIT A Form of Notice of Commitment Increase
EXHIBIT B-1 Form of Notice of Borrowing
EXHIBIT B-2 Form of Notice of Competitive Bid Borrowing
EXHIBIT C-1 Form of Term Note
EXHIBIT C-2 Form of Revolving Note
(iv)
EXHIBIT C-3 Form of Supplemental Revolving Note
EXHIBIT C-4 Form of Supplemental Term Note
EXHIBIT D Form of Letter of Credit Request
EXHIBIT E Form of Section 4.04(b)(ii) Certificate
EXHIBIT F-1 Form of Opinion of Xxxxxxx X. Xxxxxxxxx, Esq.,
Senior Vice President, General
Counsel and Secretary of the Credit Parties
EXHIBIT F-2 Form of Opinion of White & Case, Special Counsel
to the Agents
EXHIBIT G Form of Consent Letter
EXHIBIT H Form of Assignment and Assumption Agreement
(v)
CREDIT AGREEMENT, dated as of December 15, 1995, amended
and restated as of October 16, 1996 and further amended and restated as of
December 29, 1997, among NORTHWEST AIRLINES CORPORATION, a Delaware
corporation ("Holdings"), NWA INC., a Delaware corporation ("NWA"), NORTHWEST
AIRLINES, INC., a Minnesota corporation (the "Borrower"), the lending
institutions listed from time to time on Schedule I hereto (each a "Bank"
and, collectively, the "Banks"), ABN AMRO BANK N.V., as compliance agent (the
"Compliance Agent"), BANKERS TRUST COMPANY, as administrative agent (the
"Administrative Agent"), CHASE SECURITIES INC. (f/k/a CHEMICAL SECURITIES
INC.), as syndication agent (the "Syndication Agent"), CITIBANK, N.A., as
documentation agent (the "Documentation Agent"), and NATIONAL WESTMINSTER
BANK PLC and FIRST BANK NATIONAL ASSOCIATION, as Agents. Unless otherwise
defined herein, all capitalized terms used herein and defined in Section 10
are used herein as so defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Holdings, NWA, the Borrower, the Existing Banks,
the Compliance Agent, the Administrative Agent, the Syndication Agent, the
Documentation Agent and the Agents are party to a credit agreement, dated as
of December 15, 1995 and amended and restated as of October 16, 1996 (as the
same has been amended, modified or supplemented to, but not including, the
Restatement Effective Date, the "Existing Credit Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the
Existing Credit Agreement as herein provided:
NOW, THEREFORE, the parties hereto agree that the
Existing Credit Agreement shall be and hereby is amended and restated in its
entirety as follows:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.01 THE COMMITMENTS. (a) Subject to and upon the
terms and conditions set forth herein, each Bank with a Term Loan Commitment
severally agrees, (A) in the case of each Continuing Bank, to convert into
Term Loans, on the Restatement Effective Date, Existing Term Loans made by
such Continuing Bank to the Borrower pursuant to the Existing Credit
Agreement and outstanding on the Restatement Effective Date in an aggregate
principal amount equal to the amount set forth on Schedule I and/or (B) to
make on the Restatement Effective Date a term loan (each a "Term Loan" and,
collectively, the "Term Loans") to the Borrower, which Term Loans (i) shall,
at the option of the Borrower, be Base Rate Loans or Eurodollar Loans and
(ii) shall be made by each Bank in that aggregate principal amount (which, in
the case of each Continuing Bank, shall include the principal amount of
Existing Term Loans converted pursuant to clause (A) above) as is equal to
the Term Loan Commitment of such Bank on such date (before giving effect to
any reductions thereto on such date pursuant to Section 3.03(b)). Once
repaid, Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set
forth herein, each Bank with a Basic Revolving Loan Commitment severally
agrees, (A) in the case of each Continuing Bank,
to convert into Basic Revolving Loans, on the Restatement Effective Date,
Existing Revolving Loans made by such Continuing Bank to the Borrower
pursuant to the Existing Credit Agreement and outstanding on the Restatement
Effective Date in an aggregate principal amount equal to the amount set forth
on Schedule I and/or (B) at any time and from time to time on and after the
Restatement Effective Date and prior to the Revolving Loan Maturity Date, to
make a revolving loan or revolving loans (each, a "Basic Revolving Loan", and
collectively, the "Basic Revolving Loans") to the Borrower, which Basic
Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans
or Eurodollar Loans, PROVIDED that, except as otherwise specifically provided
in Section 1.10(b), all Basic Revolving Loans comprising the same Borrowing
shall at all times be of the same Type, (ii) may be repaid and reborrowed in
accordance with the provisions hereof, (iii) shall not exceed for any Bank at
any time outstanding (which, in the case of each Continuing Bank, shall
include the principal amount of Existing Revolving Loans converted pursuant
to clause (A) above) that aggregate principal amount which when added to such
Bank's BRL Percentage of the sum of (x) the aggregate amount of all Letter of
Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the
proceeds of, and simultaneously with the incurrence of, Basic Revolving
Loans) at such time plus (y) the aggregate outstanding principal amount of
all BRL Competitive Bid Loans (exclusive of BRL Competitive Bid Loans which
are repaid with the proceeds of, and simultaneously with the incurrence of,
Basic Revolving Loans) then outstanding, equals the Basic Revolving Loan
Commitment of such Bank at such time and (iv) shall not exceed for all Banks
at any time outstanding that aggregate principal amount which, when added to
the sum of (x) the aggregate amount of all Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds of, and
simultaneously with the incurrence of, Basic Revolving Loans) at such time
plus (y) the aggregate outstanding principal amount of all BRL Competitive
Bid Loans (exclusive of BRL Competitive Bid Loans which are repaid with the
proceeds of, and simultaneously with the incurrence of, Basic Revolving
Loans) then outstanding, equals the Total Basic Revolving Loan Commitment at
such time.
(c) So long as no Default or Event of Default shall then
exist, on a single date occurring after the Restatement Effective Date the
Borrower may increase the Total Basic Revolving Loan Commitment (the
"Commitment Increase") by an amount up to $50,000,000; PROVIDED that (i)
simultaneously with such Commitment Increase, the Borrower shall voluntarily
prepay (in compliance with the terms of Section 4.01) Term Loans in an
aggregate principal amount equal to the amount of the Commitment Increase
(the "Commitment Increase Amount"), (ii) at least five Business Days prior to
the proposed date of the Commitment Increase, the Borrower shall deliver to
the Administrative Agent irrevocable written notice of its intention to
increase the Total Basic Revolving Loan Commitment in the form of Exhibit A
(the "Notice of Commitment Increase"), appropriately completed, (iii) a
Commitment Increase may only occur once and (iv) there shall be no Unpaid
Drawings on the date of the Commitment Increase. Upon the occurrence of a
Commitment Increase, (A) each Bank receiving a prepayment of Term Loans in
connection with the Commitment Increase which has a Basic Revolving Loan
Commitment shall have its Basic Revolving Loan Commitment increased by an
amount equal to the aggregate principal amount of such prepayment of Term
Loans received by such Bank, (B) each Bank receiving a prepayment of Term
Loans in connection with the Commitment Increase which does not have a Basic
Revolving Loan Commitment shall then have a Basic Revolving Loan
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Commitment in the amount equal to the aggregate principal amount of such
prepayment of Term Loans received by such Bank, (C) Schedule I hereto shall
be modified to reflect such changes in each Bank's Basic Revolving Loan
Commitment, (D) new Revolving Notes will be issued, at the Borrower's
expense, to such Banks upon the request of such Banks, such new Revolving
Notes to be in conformity with the requirements of Section 1.05 with
appropriate modifications to the extent needed to reflect the revised Basic
Revolving Loan Commitments, (E) all Basic Revolving Loans outstanding
immediately prior to the Commitment Increase, if any, shall be deemed repaid
and shall then be pooled and assigned by the Banks and reallocated on a PRO
RATA basis by the Administrative Agent in such amounts and with such effect
as to provide that the Banks shall have outstanding Basic Revolving Loans
(with new Interest Periods as specified in the Notice of Commitment Increase)
based upon their new BRL Percentages (as adjusted after giving effect to the
Commitment Increase) of the aggregate principal amount of all then
outstanding Basic Revolving Loans, and each Bank agrees to sell and assign to
each other Bank, without recourse and without representation, and each Bank
agrees to purchase and assume from each other Bank, Basic Revolving Loans in
an aggregate principal amount to give effect to the foregoing provisions of
this sentence, and each of the Banks hereby further agrees to effect such
assignments on the date of the Commitment Increase by making to or receiving
from the Administrative Agent such payments as are necessary to give effect
to the foregoing as set forth in a notice delivered by the Administrative
Agent to the Banks no later than three Business Days prior to the date of the
Commitment Increase and (F) the Borrower shall compensate each Bank for all
losses, expenses and liabilities which such Bank may sustain as a result of
the repayment or deemed repayment of Basic Revolving Loans in connection with
the Commitment Increase.
(d) Subject to and upon the terms and conditions herein
set forth, each Bank severally agrees that the Borrower may incur a loan or
loans (each a "Competitive Bid Loan" and, collectively, the "Competitive Bid
Loans") pursuant to a Competitive Bid Borrowing from time to time after the
Restatement Effective Date and prior to the date which is the third Business
Day preceding the date which is 10 days prior to the Revolving Loan Maturity
Date, PROVIDED that after giving effect to any Competitive Bid Borrowing and
the use of the proceeds thereof, (x) the aggregate outstanding principal
amount of BRL Competitive Bid Loans when combined with the aggregate
outstanding principal amount of all Basic Revolving Loans then outstanding
and the aggregate Letter of Credit Outstandings at such time shall not exceed
the Total Basic Revolving Loan Commitment at such time and (y) the aggregate
outstanding principal amount of SRL Competitive Bid Loans when combined with
the aggregate outstanding principal amount of all Supplemental Revolving
Loans then outstanding shall not exceed the Total Supplemental Revolving Loan
Commitment at such time. Within the foregoing limits and subject to the
conditions set out in Section 1.03A, Competitive Bid Loans may be repaid and
reborrowed in accordance with the provisions hereof.
(e) Subject to and upon the terms and conditions herein
set forth, each Bank with a Supplemental Revolving Loan Commitment severally
agrees at any time and from time to time on and after the Restatement
Effective Date and prior to (x) the then effective Conversion Date (in the
case of Non-Extending Banks) or (y) the then effective SRL Commitment
Expiration Date (in the case of Extending Banks) to make a revolving loan or
revolving loans (each a "Supplemental Revolving Loan", and collectively, the
"Supplemental Revolving Loans") to the
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Borrower, which Supplemental Revolving Loans (i) shall, at the option of the
Borrower, be Base Rate Loans or Eurodollar Loans, PROVIDED that, except as
otherwise specifically provided in Section 1.10(b), all Supplemental
Revolving Loans comprising the same Borrowing shall at all times be of the
same Type, (ii) may be repaid and reborrowed in accordance with the
provisions hereof, (iii) shall not exceed for any Bank at any time
outstanding that aggregate principal amount which when added to such Bank's
SRL Percentage of the aggregate outstanding principal amount of all SRL
Competitive Bid Loans (exclusive of SRL Competitive Bid Loans which are
repaid with the proceeds of, and simultaneously with the incurrence of,
Supplemental Revolving Loans) then outstanding, equals the Supplemental
Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed
for all Banks at any time outstanding that aggregate principal amount which,
when added to the aggregate outstanding principal amount of all SRL
Competitive Bid Loans (exclusive of SRL Competitive Bid Loans which are
repaid with the proceeds of, and simultaneously with the incurrence of,
Supplemental Revolving Loans) then outstanding, equals the Total Supplemental
Revolving Loan Commitment at such time.
(f) Subject to and upon the terms and conditions set
forth herein, the Borrower and each Non-Extending Bank which has Supplemental
Revolving Loans outstanding at such time agree that, if the Borrower so
elects pursuant to Section 1.14, at 9:00 A.M. (New York time) on any
Conversion Date, the aggregate principal amount of Supplemental Revolving
Loans owing to such Non-Extending Bank and outstanding at such time shall
(unless such Supplemental Revolving Loans have been declared (or have become)
due and payable pursuant to Section 9 of this Agreement) convert to and
thereafter constitute term loans ("Supplemental Term Loans") owing to such
Bank hereunder. The Supplemental Term Loans of any Bank (i) shall, at the
option of the Borrower, be Base Rate Loans or Eurodollar Loans and (ii) shall
not exceed in initial principal amount for such Bank an amount which equals
the aggregate principal amount of Supplemental Revolving Loans owed to such
Bank and outstanding immediately prior to such conversion. Once repaid,
Supplemental Term Loans may not be reborrowed. On the date of conversion of
any Supplemental Revolving Loans into Supplemental Term Loans, the Borrower
shall duly execute and deliver to each of the Banks with Supplemental Term
Loans, Supplemental Term Notes issued in accordance with Section 1.05.
1.02 MINIMUM AMOUNT OF EACH BORROWING, ETC. The
aggregate principal amount of each Borrowing shall not be less than
$10,000,000 (or, in the case of Competitive Bid Loans, $5,000,000) and, if
greater, shall be in integral multiples of $5,000,000 (or, in the case of
Competitive Bid Loans, $1,000,000). More than one Borrowing may occur on the
same date, but at no time shall there be outstanding more than 20 Borrowings
of Eurodollar Loans.
1.03 NOTICE OF BORROWING. (a) Whenever the Borrower
desires to make a Borrowing (other than a Competitive Bid Borrowing)
hereunder, it shall give the Administrative Agent at its Notice Office at
least one Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) of each Base Rate Loan and at least three Business
Days' prior written notice (or telephonic notice promptly confirmed in
writing) of each Eurodollar Loan to be made hereunder, PROVIDED that any such
notice shall be deemed to have been given on a certain day only if given
before 11:00 A.M. (New York time) on such day. Each such written notice or
written confirmation of telephonic notice (each, a "Notice of Borrowing"),
except as otherwise
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expressly provided in Section 1.10, shall be irrevocable and shall be given
by the Borrower in the form of Exhibit B-1, appropriately completed to
specify the aggregate principal amount of the Loans to be made pursuant to
such Borrowing, the date of such Borrowing (which shall be a Business Day),
whether the Loans being made pursuant to such Borrowing shall constitute Term
Loans, Basic Revolving Loans or Supplemental Revolving Loans and whether the
Loans being made pursuant to such Borrowing are to be initially maintained as
Base Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the initial
Interest Period to be applicable thereto. The Administrative Agent shall
promptly give each Bank that is required to make Loans of the Tranche
specified in the respective Notice of Borrowing, notice of such proposed
Borrowing, of such Bank's proportionate share thereof and of the other
matters required by the immediately preceding sentence to be specified in the
Notice of Borrowing.
(b) Without in any way limiting the obligation of the
Borrower to confirm in writing any telephonic notice of any Borrowing of
Loans, the Administrative Agent may act without liability upon the basis of
telephonic notice of such Borrowing, believed by the Administrative Agent in
good faith to be from an Authorized Officer of the Borrower prior to receipt
of written confirmation.
1.03A COMPETITIVE BID BORROWINGS. (a) Whenever the
Borrower desires to incur a Competitive Bid Borrowing, it shall deliver to
the Administrative Agent, prior to 11:00 A.M. (New York time) (x) at least
four Business Days prior to the date of such proposed Competitive Bid
Borrowing, in the case of a Spread Borrowing, and (y) at least one Business
Day prior to the date of such proposed Competitive Bid Borrowing, in the case
of an Absolute Rate Borrowing, a written notice substantially in the form of
Exhibit B-2 hereto (a "Notice of Competitive Bid Borrowing"), which notice
shall specify in each case (i) the date (which shall be a Business Day) and
the aggregate amount of the proposed Competitive Bid Borrowing, (ii) the
maturity date for repayment of each and every Competitive Bid Loan to be made
as part of such Competitive Bid Borrowing (which maturity date may be (A)
one, two, three or six months after the date of such Competitive Bid
Borrowing, in the case of a Spread Borrowing, and (B) between 7 and 365 days,
inclusive, after the date of such Competitive Bid Borrowing, in the case of
an Absolute Rate Borrowing, PROVIDED that in no event shall the maturity date
of any Competitive Bid Borrowing be later than (x) in the case of a proposed
Borrowing of BRL Competitive Bid Loans, the third Business Day preceding the
Revolving Loan Maturity Date or (y) in the case of a proposed Borrowing of
SRL Competitive Bid Loans, the third Business Day preceding the then
effective SRL Commitment Expiration Date, (iii) the interest payment date or
dates relating thereto, (iv) whether the proposed Competitive Bid Borrowing
is to be an Absolute Rate Borrowing or a Spread Borrowing, (v) whether the
Borrower shall have the right, subject to Section 1.11, to voluntarily repay
such Competitive Bid Loans prior to the maturity thereof (a "Voluntary
Prepayment Right"), (vi) whether such proposed Competitive Bid Borrowing is
to consist of BRL Competitive Bid Loans or SRL Competitive Bid Loans and
(vii) any other terms to be applicable to such Competitive Bid Borrowing.
The Administrative Agent shall promptly notify each Bidder Bank by telephone
or facsimile of each such request for a Competitive Bid Borrowing received by
it from the Borrower and of the contents of the related Notice of Competitive
Bid Borrowing.
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(b) Each Bidder Bank shall, if, in its sole discretion,
it elects to do so, irrevocably offer to make one or more Competitive Bid
Loans to the Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Bidder Bank in its sole
discretion and determined by such Bidder Bank independently of each other
Bidder Bank, by notifying the Administrative Agent (which shall give prompt
notice thereof to the Borrower) before 10:00 A.M. (New York time) on the date
(the "Reply Date") which is (x) in the case of an Absolute Rate Borrowing,
the date of such proposed Competitive Bid Borrowing and (y) in the case of a
Spread Borrowing, three Business Days before the date of such proposed
Competitive Bid Borrowing, of the minimum amount and maximum amount of each
Competitive Bid Loan which such Bidder Bank would be willing to make as part
of such proposed Competitive Bid Borrowing (which amounts may, (i) in the
case of BRL Competitive Bid Borrowings, subject to clause (x) of the proviso
to the first sentence of Section 1.01(d), exceed such Bidder Bank's Basic
Revolving Loan Commitment and (ii) in the case of SRL Competitive Bid
Borrowings, subject to clause (y) of the proviso to the first sentence of
Section 1.01(d), exceed such Bidder Bank's Supplemental Revolving Loan
Commitment), the rate or rates of interest therefor, whether such Bidder Bank
agrees that the Borrower shall have a Voluntary Prepayment Right with respect
to the Competitive Bid Loan (if a Voluntary Prepayment Right has been
requested by the Borrower with respect to such Competitive Bid Loan) and such
Bidder Bank's lending office with respect to such Competitive Bid Loan;
PROVIDED that if the Administrative Agent in its capacity as a Bidder Bank
shall, in its sole discretion, elect to make any such offer, it shall notify
the Borrower of such offer before 9:45 A.M. (New York time) on the Reply
Date. Any Bidder Bank not giving the Administrative Agent the notice
specified in the preceding sentence shall not be obligated to, and shall not,
make any Competitive Bid Loan as part of such Competitive Bid Borrowing.
(c) The Borrower shall, in turn, before (x) 11:00 A.M.
(New York time) on the Reply Date in the case of a proposed Absolute Rate
Borrowing and (y) 10:00 A.M. (New York time) on the Business Day following
the Reply Date in the case of a proposed Spread Borrowing, either:
(i) cancel such Competitive Bid Borrowing by giving the
Administrative Agent notice to such effect, or
(ii) accept one or more of the offers made by any Bidder
Bank or Bidder Banks pursuant to clause (b) above by giving
notice (in writing or by telephone confirmed in writing) to the
Administrative Agent of the amount of each Competitive Bid Loan
(which amount shall be equal to or greater than the minimum
amount, and equal to or less than the maximum amount, notified
to the Borrower by the Administrative Agent on behalf of such
Bidder Bank for such Competitive Bid Borrowing pursuant to
clause (b) above) to be made by each Bidder Bank as part of
such Competitive Bid Borrowing, and reject any remaining offers
made by Bidder Banks pursuant to clause (b) above by giving the
Administrative Agent notice to that effect; PROVIDED that (x)
to the extent the Borrower accepts offers which do not include
a Voluntary Prepayment Right (each a "Non-Prepayment
Competitive Bid Offer"), the acceptance of such Non-Prepayment
Competitive Bid Offers shall only be made on the basis of
ascending Absolute Rates (in
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the case of an Absolute Rate Borrowing) or Spreads (in the case
of a Spread Borrowing) for all such Non-Prepayment Competitive
Bid Offers and (y) to the extent the Borrower accepts offers
which include a Voluntary Prepayment Right (each a "Prepayment
Competitive Bid Offer"), the acceptance of such Prepayment
Competitive Bid Offers shall only be made on the basis of
ascending Absolute Rates (in the case of an Absolute Rate
Borrowing) or Spreads (in the case of a Spread Borrowing) for
all such Prepayment Competitive Bid Offers, in each case set
forth in clauses (x) and (y) commencing with the lowest rate so
offered (it being understood and agreed that no Non-Prepayment
Competitive Bid Offer shall be permitted to be accepted by the
Borrower unless all Prepayment Competitive Bid Offers offered
at a lower rate than such Non-Prepayment Competitive Bid Offer
have been accepted by the Borrower); PROVIDED FURTHER, however,
if two or more Prepayment Competitive Bid Offers or
Non-Prepayment Competitive Bid Offers, as the case may be, are
made by Bidder Banks at the same rate and acceptance of all
such equal Prepayment Competitive Bid Offers or Non-Prepayment
Competitive Bid Offers, as the case may be, would result in a
greater principal amount of Competitive Bid Loans being
accepted than the aggregate principal amount requested by the
Borrower, if the Borrower elects to accept any of such offers
the Borrower shall accept such offers pro rata from such Bidder
Banks (on the basis of the maximum amounts of such offers)
unless any such Bidder Bank's pro rata share would be less than
the minimum amount specified by such Bidder Bank in its offer,
in which case the Borrower shall have the right to accept one
or more such equal offers in their entirety and reject the
other equal offer or offers or to allocate acceptance among all
such equal offers (but giving effect to the minimum and maximum
amounts specified for each such offer pursuant to clause (b)
above) as the Borrower may elect in its sole discretion.
(d) If the Borrower notifies the Administrative Agent
that such Competitive Bid Borrowing is cancelled pursuant to clause (c)(i)
above, the Administrative Agent shall give prompt notice thereof to the
Bidder Banks and such Competitive Bid Borrowing shall not be made.
(e) If the Borrower accepts one or more of the offers
made by any Bidder Bank or Bidder Banks pursuant to clause (c)(ii) above, the
Administrative Agent shall in turn promptly notify (x) each Bidder Bank that
has made an offer as described in clause (b) above, of the date and aggregate
amount of such Competitive Bid Borrowing and whether or not any offer or
offers made by such Bidder Bank pursuant to clause (b) above have been
accepted by the Borrower and (y) each Bidder Bank that is to make a
Competitive Bid Loan as part of such Competitive Bid Borrowing, of the amount
of each Competitive Bid Loan to be made by such Bidder Bank as part of such
Competitive Bid Borrowing.
1.04 DISBURSEMENT OF FUNDS. No later than 12:00 Noon
(New York time) on the date specified in each Notice of Borrowing or Notice
of Competitive Bid Borrowing, as the case may be, each Bank will make
available its PRO RATA portion of each Borrowing (or, in the case of a
Competitive Bid Borrowing, its portion, if any, of such Borrowing) requested
to be made on such date. All such amounts shall be made available in Dollars
and in immediately available funds at the Payment Office of the
Administrative Agent, and the Administrative Agent will make
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available to the Borrower at the Payment Office the aggregate of the amounts
so made available by the Banks. Unless the Administrative Agent shall have
been notified by any Bank prior to the date of Borrowing that such Bank does
not intend to make available to the Administrative Agent such Bank's portion
of any Borrowing to be made on such date, the Administrative Agent may assume
that such Bank has made such amount available to the Administrative Agent on
such date of Borrowing and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the Administrative
Agent by such Bank, the Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Bank. If such Bank does not
pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify the Borrower
and the Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to
recover on demand from such Bank or the Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to
the Borrower until the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if recovered from such
Bank, at the overnight Federal Funds Rate and (ii) if recovered from the
Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Bank from its obligation to make Loans hereunder or to
prejudice any rights which the Borrower may have against any Bank as a result
of any failure by such Bank to make Loans hereunder.
1.05 NOTES. (a) The Borrower's obligation to pay the
principal of, and interest on, the Loans (other than Competitive Bid Loans)
made by each Bank shall be evidenced (i) if Term Loans, by a promissory note
duly executed and delivered by the Borrower substantially in the form of
Exhibit C-1 with blanks appropriately completed in conformity herewith (each,
a "Term Note" and, collectively, the "Term Notes"), (ii) if Basic Revolving
Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit C-2, with blanks appropriately completed
in conformity herewith (each, a "Revolving Note" and, collectively, the
"Revolving Notes"), (iii) if Supplemental Revolving Loans, by a promissory
note duly executed and delivered by the Borrower substantially in the form of
Exhibit C-3 with blanks appropriately completed in conformity herewith (each,
a "Supplemental Revolving Note" and, collectively, the "Supplemental
Revolving Notes") and (iv) if Supplemental Term Loans, by a promissory note
duly executed and delivered by the Borrower substantially in the form of
Exhibit C-4, with blanks appropriately completed in conformity herewith
(each, a "Supplemental Term Note" and, collectively, the "Supplemental Term
Notes").
(b) The Term Note issued to each Bank shall (i) be
executed by the Borrower, (ii) be payable to the order of such Bank and be
dated the Restatement Effective Date, (iii) be in a stated principal amount
equal to the Term Loan made by such Bank on the Restatement Effective Date
(which, in the case of each Continuing Bank, shall include the principal
amount of Existing Term Loans converted pursuant to Section 1.01(a)(A)) and
be payable in the principal amount of the Term Loan evidenced thereby, (iv)
mature on the Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
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Eurodollar Loans, as the case may be, evidenced thereby and (vi) be subject
to mandatory repayment as provided in Section 4.02.
(c) The Revolving Note issued to each Bank shall (i) be
executed by the Borrower, (ii) be payable to the order of such Bank and be
dated the Restatement Effective Date, (iii) be in a stated principal amount
equal to the Basic Revolving Loan Commitment of such Bank and be payable in
the principal amount of the Basic Revolving Loans evidenced thereby, (iv)
mature on the Revolving Loan Maturity Date, (v) bear interest as provided in
the appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby and (vi) be subject
to mandatory repayment as provided in Section 4.02.
(d) The Supplemental Revolving Note issued to each Bank
shall (i) be executed by the Borrower, (ii) be payable to the order of such
Bank and be dated the Restatement Effective Date, (iii) be in a stated
principal amount equal to the Supplemental Revolving Loan Commitment of such
Bank and be payable in the principal amount of the Supplemental Revolving
Loans evidenced thereby, (iv) mature on the SRL Commitment Expiration Date,
(v) bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby and (vi) be subject to mandatory repayment as provided in
Section 4.02.
(e) The Supplemental Term Note issued to each Bank shall
(i) be executed by the Borrower, (ii) be payable to the order of such Bank
and be dated the Conversion Date applicable to such Bank, (iii) be in a
stated principal amount equal to the aggregate outstanding principal amount
of Supplemental Revolving Loans made by such Bank and converted into the
Supplemental Term Loans pursuant to Section 1.01(f) and be payable in the
principal amount of the Supplemental Term Loans evidenced thereby, (iv)
mature on the Supplemental Term Loan Maturity Date, (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base
Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby and
(vi) be subject to mandatory repayment as provided in Section 4.02.
(f) Each Bank will note on its internal records the
amount of each Loan made by it and each payment in respect thereof and will
prior to any transfer of any of its Notes endorse on the reverse side thereof
the outstanding principal amount of Loans evidenced thereby. Failure to make
any such notation shall not affect the Borrower's obligations in respect of
such Loans.
1.06 CONVERSIONS. The Borrower shall have the option to
convert, on any Business Day, all or a portion equal to at least $10,000,000
(and, if greater, in integral multiples of $5,000,000) of the outstanding
principal amount of Term Loans, Basic Revolving Loans, Supplemental Revolving
Loans and/or Supplemental Term Loans made pursuant to one or more Borrowings
(so long as of the same Tranche) of one or more Types of Loans into a
Borrowing (of the same Tranche) of another Type of Loan, PROVIDED that (i)
except as otherwise provided in Section 1.10(b), Eurodollar Loans may be
converted into Base Rate Loans only on the last day of an Interest Period
applicable to the Loans being converted and no partial conversion of
Eurodollar Loans shall reduce the outstanding principal amount of such
Eurodollar Loans made pursuant to a single Borrowing to less than
$10,000,000, (ii) Base Rate Loans may only be
-9-
converted into Eurodollar Loans if no Default or Event of Default is in
existence on the date of the conversion and (iii) no conversion pursuant to
this Section 1.06 shall result in a greater number of Borrowings of
Eurodollar Loans than is permitted under Section 1.02. Each such conversion
shall be effected by the Borrower by giving the Administrative Agent at its
Notice Office prior to 11:00 A.M. (New York time) at least three Business
Days' prior notice (each, a "Notice of Conversion") specifying the Loans to
be so converted, the Borrowing or Borrowings pursuant to which such Loans
were made and, if to be converted into Eurodollar Loans, the Interest Period
to be initially applicable thereto. The Administrative Agent shall give each
Bank prompt notice of any such proposed conversion affecting any of its Loans.
1.07 PRO RATA BORROWINGS. All Borrowings of Term Loans,
Basic Revolving Loans and Supplemental Revolving Loans under this Agreement
shall be incurred from the Banks PRO RATA on the basis of their Term Loan
Commitments, Basic Revolving Loan Commitments or Supplemental Revolving Loan
Commitments, as the case may be. It is understood that no Bank shall be
responsible for any default by any other Bank of its obligation to make Loans
hereunder and that each Bank shall be obligated to make the Loans provided to
be made by it hereunder, regardless of the failure of any other Bank to make
its Loans hereunder.
1.08 INTEREST. (a) The Borrower agrees to pay interest
in respect of the unpaid principal amount of each Base Rate Loan from the
date the proceeds thereof are made available to the Borrower until the
earlier of (i) the maturity (whether by acceleration or otherwise) of such
Base Rate Loan and (ii) the conversion of such Base Rate Loan to a Eurodollar
Loan pursuant to Section 1.06, at a rate per annum which shall be equal to
the Base Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of
the unpaid principal amount of each Eurodollar Loan from the date the
proceeds thereof are made available to the Borrower until the earlier of (i)
the maturity (whether by acceleration or otherwise) of such Eurodollar Loan
and (ii) the conversion of such Eurodollar Loan to a Base Rate Loan pursuant
to Section 1.06, 1.09 or 1.10, as applicable, at a rate per annum which
shall, during each Interest Period applicable thereto, be equal to the sum of
the Applicable Eurodollar Margin plus the Eurodollar Rate for such Interest
Period.
(c) e Borrower agrees to pay interest in respect of the
unpaid principal amount of each Competitive Bid Loan from the date the
proceeds thereof are made available to the Borrower until the maturity
(whether by acceleration or otherwise) of such Competitive Bid Loan, at the
rate or rates per annum specified by a Bidder Bank or Bidder Banks, as the
case may be, pursuant to Section 1.03A(b) and accepted by the Borrower
pursuant to Section 1.03A(c).
(d) Overdue principal and, to the extent permitted by
law, overdue interest in respect of each Loan and any other overdue amount
payable hereunder shall, in each case, bear interest at a rate per annum
equal to the greater of (x) except as provided in Section 1.08(d)(y), 2% per
annum in excess of the rate otherwise applicable to Base Rate Loans of the
respective Tranche of Loans (it being understood that for purposes of this
clause (x), (i) BRL Competitive Bid Loans shall be deemed to be Loans of the
Basic Revolving Loan facility and (ii) SRL
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Competitive Bid Loans and Supplemental Term Loans shall be deemed to be Loans
of the Supplemental Revolving Loan facility) from time to time and (y) in the
case of Eurodollar Loans and Competitive Bid Loans, until the end of the
applicable Interest Period for such Eurodollar Loans, or the original
scheduled maturity of such Competitive Bid Loans, as the case may be, at a
rate which is 2% in excess of the rate then borne by such Loans, in each case
with such interest to be payable on demand.
(e) Accrued (and theretofore unpaid) interest shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on each
Quarterly Payment Date, (ii) in respect of each Competitive Bid Loan, at such
times as specified in the Notice of Competitive Bid Borrowing relating
thereto, (iii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iv) in respect of each Loan, on
any repayment or prepayment (on the amount repaid or prepaid), at maturity
(whether by acceleration or otherwise) and, after such maturity, on demand.
(f) Upon each Interest Determination Date, the
Administrative Agent shall determine the Eurodollar Rate for each Interest
Period applicable to Eurodollar Loans and shall promptly notify the Borrower
and the Banks thereof.
1.09 INTEREST PERIODS. At the time it gives any Notice
of Borrowing or Notice of Conversion in respect of the making of, or
conversion into, any Eurodollar Loan (in the case of the initial Interest
Period applicable thereto) or on the third Business Day prior to the
expiration of an Interest Period applicable to such Eurodollar Loan (in the
case of any subsequent Interest Period), the Borrower shall have the right to
elect, by giving the Administrative Agent notice thereof, the interest period
or interest periods (each, an "Interest Period") applicable to such
Eurodollar Loan (or any portion thereof), which Interest Period shall, at the
option of the Borrower, be a one, two, three, six or (if available to all of
the Banks) twelve-month period, PROVIDED that:
(i) all Eurodollar Loans comprising a Borrowing shall at
all times have the same Interest Period (it being understood that one
Borrowing may be converted into more than one Borrowing as a result of the
selection of Interest Periods so long as in any event, after giving effect to
such conversions, all Banks with Commitments or Loans of the applicable
Tranche (or in the case of Supplemental Term Loans, all Banks whose Loans
were converted to Supplemental Term Loans on the same date) are participating
PRO RATA in such Borrowing and Section 1.02 is complied with);
(ii) the initial Interest Period for any Eurodollar Loan
shall commence on the date of Borrowing of such Eurodollar Loan
(including the date of any conversion thereto from a Loan of a
different Type) and each Interest Period occurring thereafter in
respect of such Eurodollar Loan shall commence on the day on which
the next preceding Interest Period applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan
begins on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period, such
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Interest Period shall end on the last Business Day of such calendar
month;
(iv) if any Interest Period would otherwise expire on a
day which is not a Business Day, such Interest Period shall expire
on the next succeeding Business Day; PROVIDED, HOWEVER, that if any
Interest Period for a Eurodollar Loan would otherwise expire on a
day which is not a Business Day but is a day of the month after
which no further Business Day occurs in such month, such Interest
Period shall expire on the next preceding Business Day;
(v) no Interest Period may be selected at any time when
a Default or Event of Default is then in existence;
(vi) no Interest Period in respect of any Borrowing of
any Tranche of Loans shall be selected which extends beyond the
respective Maturity Date for such Tranche;
(vii) no Interest Period in respect of any Borrowing of
Supplemental Revolving Loans shall be selected which extends beyond
the then effective SRL Commitment Expiration Date (without giving
effect to any future extensions thereof to occur after the date on
which such Interest Period is being selected unless on such date of
selection all Banks with a Supplemental Revolving Loan Commitment
(after giving effect to any assignment by Non-Extending Banks
pursuant to Section 1.14) constitute Extending Banks); and
(viii) no Interest Period in respect of any Borrowing of
Term Loans shall be selected which extends beyond any date upon
which a mandatory repayment of Term Loans will be required to be
made under Section 4.02(b) if the aggregate principal amount of
Term Loans which have Interest Periods which will expire after such
date will be in excess of the aggregate principal amount of Term
Loans then outstanding less the aggregate amount of such required
prepayment.
If upon the expiration of any Interest Period applicable to a Borrowing of
Eurodollar Loans, the Borrower has failed to elect, or is not permitted to
elect, a new Interest Period or Interest Periods to be applicable to such
Eurodollar Loans as provided above, the Borrower shall be deemed to have
elected to convert such Eurodollar Loans into Base Rate Loans effective as of
the expiration date of such current Interest Period.
1.10 INCREASED COSTS, ILLEGALITY, ETC. (a) In the
event that any Bank shall have determined (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto
but, with respect to clause (i) below, may be made only by the Administrative
Agent):
(i) on any Interest Determination Date (or, in the case
of any Spread Borrowing, the date that is two Business Days
prior to the proposed Spread Borrowing) that, by reason of any
changes arising after the date of this Agreement affecting the
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interbank Eurodollar market, adequate and fair means do not
exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased
costs or reductions in the amounts received or receivable
hereunder with respect to any Eurodollar Loan or Spread
Borrowing because of (x) any change since the Restatement
Effective Date in any applicable law or governmental rule,
regulation, order, guideline or request (whether or not having
the force of law) or in the interpretation or administration
thereof and including the introduction of any new law or
governmental rule, regulation, order, guideline or request
(such as, for example, but not limited to a change in official
reserve requirements, but, in all events, excluding reserves
required under Regulation D of the Board of Governors of the
Federal Reserve System to the extent included in the
computation of the Eurodollar Rate) and/or (y) other
circumstances (other than an adverse change in the credit
quality of such Bank) since the Restatement Effective Date
affecting the interbank Eurodollar market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan or Spread Borrowing has become (x) unlawful by
any law or governmental rule, regulation or order, (y)
impossible by compliance by any Bank in good faith with any
governmental request (whether or not having force of law) or
(z) impracticable as a result of a contingency occurring after
the date of this Agreement which materially and adversely
affects the interbank Eurodollar market; then, and in any
such event, such Bank (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by
telephone confirmed in writing) to the Borrower and, except in
the case of clause (i) above, to the Administrative Agent of
such determination (which notice the Administrative Agent
shall promptly transmit to each of the other Banks).
Thereafter (x) in the case of clause (i) above, Eurodollar
Loans (or Competitive Bid Loans constituting a Spread
Borrowing) shall no longer be available until such time as the
Administrative Agent notifies the Borrower and the Banks that
the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of
Borrowing, Notice of Competitive Bid Borrowing or Notice of
Conversion given by the Borrower with respect to Eurodollar
Loans or any Spread Borrowing, as the case may be, which have
not yet been incurred (including by way of conversion) shall
be deemed rescinded by the Borrower, (y) in the case of clause
(ii) above, the Borrower shall, subject to the provisions of
Section 12.15 (to the extent applicable) pay to such Bank,
upon written demand therefor, such additional amounts (in the
form of an increased rate of, or a different method of
calculating, interest or otherwise as such Bank shall
reasonably determine) as shall be required to compensate such
Bank for such increased costs or reductions in amounts
received or receivable hereunder (a written notice as to the
additional amounts owed to such Bank, showing in reasonable
detail the basis for the calculation thereof, submitted to the
Borrower by such Bank in good faith shall, absent manifest
error, be final and conclusive and binding on all the parties
hereto) and (z) in the case of clause (iii) above, the
Borrower shall take one of the actions specified in Section
1.10(b) as promptly as possible and, in any event, within the
time period required by law. Each of the Administrative Agent
and each Bank agrees that if it gives notice to the
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Borrower of any of the events described in clause (i) or (iii)
above, it shall promptly notify the Borrower and, in the case
of any such Bank, the Administrative Agent, if such event
ceases to exist. If any such event described in clause (iii)
above ceases to exist as to a Bank, the obligations of such
Bank to make Eurodollar Loans and to convert Base Rate Loans
into Eurodollar Loans on the terms and conditions contained
herein shall be reinstated.
(b) At any time that any Eurodollar Loan or Spread
Borrowing is affected by the circumstances described in Section 1.10(a)(ii)
or (iii), the Borrower may (and in the case of a Eurodollar Loan or Spread
Borrowing affected by the circumstances described in Section 1.10(a)(iii)
shall) either (x) if the affected Eurodollar Loan or Spread Borrowing is then
being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that the Borrower was notified by the affected Bank
or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii), (y) if
the affected Eurodollar Loan is then outstanding, upon at least three
Business Days' written notice to the Administrative Agent, require the
affected Bank to convert such Eurodollar Loan into a Base Rate Loan or (z) if
the affected Spread Borrowing is then outstanding, prepay such Spread
Borrowing in full (which prepayment may be made with the proceeds of Basic
Revolving Loans or Supplemental Revolving Loans), PROVIDED that, if more than
one Bank is affected at any time, then all affected Banks must be treated the
same pursuant to this Section 1.10(b).
(c) If at any time any Bank determines that the
introduction after the Restatement Effective Date of, or any change after the
Restatement Effective Date in, any applicable law or governmental rule,
regulation, order, guideline, directive or request (whether or not having the
force of law) concerning capital adequacy, or any change after the
Restatement Effective Date in interpretation or administration thereof by any
governmental authority, central bank or comparable agency, will have the
effect of increasing the amount of capital required or expected to be
maintained by such Bank or any corporation controlling such Bank based on the
existence of such Bank's Commitments hereunder or its obligations hereunder,
then the Borrower shall, subject to the provisions of Section 12.15 (to the
extent applicable), pay to such Bank, upon its written demand therefor, such
additional amounts as shall be required to compensate such Bank or such other
corporation for the increased cost to such Bank or such other corporation or
the reduction in the rate of return to such Bank or such other corporation as
a result of such increase of capital. In determining such additional
amounts, each Bank will act reasonably and in good faith and will use
averaging and attribution methods which are reasonable. Each Bank will
provide written notice thereof to the Borrower, which notice shall show the
basis for calculation of such additional amounts, although the failure to
give any such notice shall, subject to Section 12.15, not release or diminish
any of the Borrower's obligations to pay additional amounts pursuant to this
Section 1.10(c) upon receipt of such notice.
1.11 COMPENSATION. The Borrower shall, subject to the
provisions of Section 12.15 (to the extent applicable), compensate each Bank,
upon its written request (which request shall set forth the basis for
requesting such compensation), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of
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the liquidation or reemployment of deposits or other funds required by such
Bank to fund its Eurodollar Loans or Competitive Bid Loans but excluding any
loss of anticipated profits) which such Bank may sustain: (i) if for any
reason (other than a default by such Bank or the Administrative Agent) a
Borrowing of, or conversion from or into, Eurodollar Loans or Competitive Bid
Loans accepted by the Borrower in accordance with Section 1.03A(c)(ii) does
not occur on a date specified therefor in a Notice of Borrowing, Notice of
Competitive Bid Borrowing or Notice of Conversion (whether or not withdrawn
by the Borrower or deemed withdrawn pursuant to Section 1.10(a) or (b)); (ii)
if any repayment (including, without limitation, any repayment made pursuant
to Section 1.01(c), 4.01 or 4.02 or as a result of an acceleration of the
Loans pursuant to Section 9) or conversion of any of its Eurodollar Loans
occurs on a date which is not the last day of an Interest Period with respect
thereto or any repayment of its Competitive Bid Loans occurs prior to the
maturity thereof; (iii) if any prepayment of any of its Eurodollar Loans or
Competitive Bid Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or (iv) as a consequence of (x) any other
default by the Borrower to repay its Loans when required by the terms of this
Agreement or any Note held by such Bank, (y) any election made pursuant to
Section 1.10(b), or (z) the Commitment Increase pursuant to Section 1.01(c).
No Bank shall be deemed to have any loss, expense or liability incurred by
the reason of the liquidation or reemployment of deposits as a result of the
Borrower repaying Eurodollar Loans or Competitive Bid Loans priced by
reference to the Eurodollar Rate prior to the end of an Interest Period or
the maturity of a Competitive Bid Loan unless the Eurodollar Rate which would
be applicable to the Eurodollar Loan or Competitive Bid Loan being repaid if
such Eurodollar Rate were being determined on the date of repayment (assuming
for purposes of this determination that the Interest Period or the maturity
utilized in making such determination is the Interest Period or the maturity
originally applicable to such Eurodollar Loan or Competitive Bid Loan) is
less than the Eurodollar Rate actually applicable to the Eurodollar Loan or
Competitive Bid Loan being repaid.
1.12 CHANGE OF LENDING OFFICE. Each Bank agrees that
after becoming aware of the occurrence of any event giving rise to the
operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or
Section 4.04 with respect to such Bank, it will use reasonable efforts
(subject to overall policy considerations of such Bank) to designate another
lending office for any Loans affected by such event, PROVIDED that such
designation is made on such terms that such Bank and its lending office
suffer no material economic, legal or regulatory disadvantage, with the
object of avoiding the consequence of the event giving rise to the operation
of such Section. Nothing in this Section 1.12 shall affect or postpone any
of the obligations of the Borrower or the rights of any Bank provided in
Sections 1.10, 2.05 and 4.04, PROVIDED that this sentence shall not limit the
Borrower's rights and remedies in connection with a breach of the immediately
preceding sentence.
1.13 REPLACEMENT OF BANKS. If (x) any Bank defaults in
its obligations to make Loans or fund Unpaid Drawings, (y) any Bank refuses
to give timely consent to proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Banks as provided in Section 12.12(b) or (z) any Bank is owed
increased costs under Section 1.10 (by virtue of the application of Section
1.11 or otherwise), Section 2.05 or Section 4.04 which in the judgment of the
Borrower are material in amount and
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which are not otherwise requested by Banks constituting at least the
Super-Majority Banks, the Borrower shall have the right, if no Event of
Default then exists and, in the case of a Bank described in clause (z) above,
such Bank has not withdrawn its request for such compensation or changed its
applicable lending office with the effect of eliminating or substantially
decreasing (to a level which in the judgment of the Borrower is not material)
such increased cost, to replace such Bank (the "Replaced Bank") with one or
more other Eligible Transferee or Transferees (collectively, the "Replacement
Bank") with the consent of the Administrative Agent, which consent shall not
be unreasonably withheld or delayed, PROVIDED that (i) at the time of any
replacement pursuant to this Section 1.13, the Replacement Bank shall enter
into one or more Assignment and Assumption Agreements pursuant to which the
Replacement Bank shall acquire all of the Commitment and outstanding Loans
of, and participations in Letters of Credit by, the Replaced Bank and, in
connection therewith, shall pay to (x) the Replaced Bank in respect thereof
an amount equal to the sum of (a) an amount equal to the principal of, and
all accrued interest on, all outstanding Loans of the Replaced Bank, (b) an
amount equal to such Replaced Bank's BRL Percentage of all Unpaid Drawings
that have been funded by such Replaced Bank, together with all then unpaid
interest with respect thereto at such time and (c) an amount equal to all
accrued, but theretofore unpaid, Fees owing to the Replaced Bank pursuant to
Section 3.01 hereof and (y) the appropriate Issuing Bank an amount equal to
such Replaced Bank's BRL Percentage of any Unpaid Drawing not funded by such
Replaced Bank and (ii) all obligations of the Borrower owing to the Replaced
Bank (other than those specifically described in clause (i) above in respect
of which the assignment purchase price has been, or is concurrently being,
paid) shall be paid in full to such Replaced Bank concurrently with such
replacement. Upon the execution of the respective assignment documentation,
the payment of amounts referred to in clauses (i) and (ii) above and, if so
requested by the Replacement Bank, delivery to the Replacement Bank of the
appropriate Notes executed by the Borrower, the Replacement Bank shall become
a Bank hereunder and the Replaced Bank shall cease to constitute a Bank
hereunder, except with respect to indemnification provisions under this
Agreement, which shall survive as to such Replaced Bank.
1.14 EXTENSION OF SRL COMMITMENT EXPIRATION DATE;
REPLACEMENT OF NON-EXTENDING BANKS OR CONVERSION OF SUPPLEMENTAL REVOLVING
LOANS INTO SUPPLEMENTAL TERM LOANS. The Borrower may, at any time after the
date which is 90 days prior to the then SRL Commitment Expiration Date and
prior to the date which is 30 days prior to the then SRL Commitment
Expiration Date, by written notice to the Administrative Agent (which notice
the Administrative Agent shall promptly transmit to each Bank), request that
each Bank with a Supplemental Revolving Loan Commitment agree to a 364 day
extension of the SRL Commitment Expiration Date then in effect. Each Bank
with a Supplemental Revolving Loan Commitment shall respond to such extension
request (each such response being delivered to the Administrative Agent) not
earlier than the fifteenth day prior to the SRL Commitment Expiration Date
then in effect (such date, the "First Response Date") and not later than five
Business Days prior to the SRL Commitment Expiration Date then in effect (the
"Last Response Date"), with the failure of any Bank to respond being deemed
to be a negative response. Each Bank with a Supplemental Revolving Loan
Commitment shall decide, in its sole discretion, whether or not to agree to
such extension of the SRL Commitment Expiration Date. On the Business Day
next following the Last Response Date, the Administrative Agent shall advise
the Borrower of each
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Bank's response, whereupon the Borrower shall within one Business Day
determine, and so advise the Administrative Agent, either (a) not to have the
SRL Commitment Expiration Date extended or (b) to have the SRL Commitment
Expiration Date extended. If the Borrower so elects to extend the SRL
Commitment Expiration Date, and so long as no Default or Event of Default is
in existence at such time, then each Bank that has responded affirmatively as
set forth above (each such Bank, an "Extending Bank") shall be deemed to have
agreed (such agreement to become effective on the then effective SRL
Commitment Expiration Date (each such date, a "Conversion Date")) to cause
the SRL Commitment Expiration Date to be extended as to each Extending Bank
until the date which is 364 days after the SRL Commitment Expiration Date
then in effect. In the event that one or more Banks (each a "Non-Extending
Bank") do not agree to such extension, the Borrower may elect, with respect
to each such Non-Extending Bank, on or before the then SRL Commitment
Expiration Date then in effect, to either (i) provide, with the consent of
the Administrative Agent (which consent shall not be unreasonably withheld),
another financial institution to acquire the Supplemental Revolving Loan
Commitment of and Supplemental Revolving Loans owing to such Non-Extending
Bank and all amounts owing to such Non-Extending Bank in respect of such
Commitment and Loans under this Agreement, which assignment of such
Non-Extending Bank's Supplemental Revolving Loan Commitment and Supplemental
Revolving Loans and replacement of such Non-Extending Bank shall be effected
pursuant to an assignment agreement between the Non-Extending Bank and such
other financial institution or (ii) convert, on the Conversion Date, the
outstanding Supplemental Revolving Loans of such Non-Extending Bank into
Supplemental Term Loans as provided in Section 1.01(f), and upon such
conversion, terminate the Supplemental Revolving Loan Commitment of such
Non-Extending Bank pursuant to Section 3.03(d)(at which time Schedule I shall
be deemed modified to reflect the changed Supplemental Revolving Loan
Commitments). In the event that the Borrower shall elect not to replace or
terminate the Supplemental Revolving Loan Commitment of a Non-Extending Bank
at the end of any such 364 day period pursuant to the preceding sentence,
such Non-Extending Bank's Supplemental Revolving Loan Commitment shall
terminate on the Conversion Date and such Non-Extending Bank shall remain a
Bank hereunder until the payment in full of all amounts owing to such
Non-Extending Bank hereunder. The SRL Commitment Expiration Date may be
extended for successive periods of 364 days pursuant to this Section 1.14 but
in no event shall any SRL Commitment Expiration Date extend beyond the
Revolving Loan Maturity Date. On the Conversion Date, (x) new Supplemental
Revolving Notes and Supplemental Term Notes will be issued, at the Borrower's
expense, such new Notes to be in conformity with the requirements of Section
1.05 (with appropriate modifications) to the extent needed to reflect the
revised Supplemental Revolving Commitments of the Banks (and/or outstanding
Supplemental Term Loans, as the case may be) and (y) Schedule I shall be
deemed modified to reflect the changed Supplemental Revolving Loan
Commitments.
SECTION 2. LETTERS OF CREDIT.
2.01 LETTERS OF CREDIT. (a) Subject to and upon the
terms and conditions herein set forth, the Borrower may request that any
Issuing Bank issue, at any time and from time to time on and after the
Restatement Effective Date and prior to the Revolving Loan Maturity Date, for
the account of the Borrower and for the benefit of any holder (or any
trustee, agent or other
-17-
similar representative for any such holders) of L/C Supportable Obligations
of Holdings or any of its Subsidiaries, an irrevocable standby letter of
credit, in a form customarily used by such Issuing Bank or in such other form
as has been approved by such Issuing Bank (each such standby letter of
credit, a "Letter of Credit") in support of such L/C Supportable Obligations
and each Issuing Bank agrees at any time and from time to time on or after
the Restatement Effective Date and prior to the Revolving Loan Maturity Date,
following its receipt of the respective Letter of Credit Request, that it
will issue for the account of the Borrower one or more Letters of Credit.
Schedule III contains a description of all letters of credit issued or
outstanding under the Existing Credit Agreement prior to the Restatement
Effective Date and which will remain outstanding on the Restatement Effective
Date. Each such letter of credit, including any extension thereof (each an
"Existing Letter of Credit") shall constitute a "Letter of Credit" for all
purposes of this Agreement and shall be deemed issued for purposes of
Sections 2.03 and 3.01 on the Restatement Effective Date. Notwithstanding the
foregoing, the respective Issuing Bank shall be under no obligation to issue
any Letter of Credit of the types described above if at the time of such
issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to enjoin
or restrain such Issuing Bank from issuing such Letter of
Credit or any requirement of law applicable to such Issuing
Bank or any request or directive (whether or not having the
force of law) from any governmental authority with
jurisdiction over such Issuing Bank shall prohibit, or request
that such Issuing Bank refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular or
shall impose upon such Issuing Bank with respect to such
Letter of Credit any restriction or reserve or capital
requirement (for which such Issuing Bank is not otherwise
compensated) not in effect on the Restatement Effective Date
or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Issuing Bank as of the
Restatement Effective Date and which such Issuing Bank in good
xxxxx xxxxx material to it; or
(ii) such Issuing Bank shall have received notice from the
Required Banks prior to the issuance of such Letter of Credit
of the type described in the penultimate sentence of Section
2.02.
(b) Notwithstanding the foregoing, (i) no Letter of
Credit shall be issued, the Stated Amount of which, when added to the Letter
of Credit Outstandings (exclusive of Unpaid Drawings which are repaid on the
date of, and prior to the issuance of, the respective Letter of Credit) at
such time would exceed (x) $75,000,000 or (y) when added to the aggregate
outstanding principal amount of all Basic Revolving Loans and all BRL
Competitive Bid Loans, the Total Basic Revolving Loan Commitment and (ii)
each Letter of Credit shall by its terms terminate on or before the tenth
Business Day prior to the Revolving Loan Maturity Date.
(c) Notwithstanding the foregoing, in the event a Bank
with a Basic Revolving Loan Commitment (or after the termination thereof, any
Letter of Credit Outstandings or Basic Revolving Loans) has defaulted in its
obligations to make Loans or fund Unpaid Drawings, no Issuing Bank shall be
required to issue any Letter of Credit unless the respective Issuing Bank
-18-
has entered into arrangements satisfactory to it and the Borrower to
eliminate such Issuing Bank's risk with respect to the participation in
Letters of Credit of the defaulting Bank or Banks, including by cash
collateralizing such defaulting Bank's or Banks' BRL Percentage of the Letter
of Credit Outstandings.
2.02 LETTER OF CREDIT REQUESTS. Whenever the Borrower
desires that a Letter of Credit be issued for its account, the Borrower shall
give the Administrative Agent and the respective Issuing Bank at least two
Business Days' (or such shorter period as is acceptable to the respective
Issuing Bank) written notice (or telephonic notice promptly confirmed in
writing) thereof, PROVIDED that any such notice shall be deemed to have been
given on a certain day only if given before 11:00 A.M. (New York time) on
such day. Each such written notice or written confirmation of telephonic
notice shall be in the form of Exhibit D (each, a "Letter of Credit
Request"). Unless the respective Issuing Bank has received notice from the
Required Banks before it issues a Letter of Credit that one or more of the
conditions specified in Section 5A or Section 5B, as then applicable, are not
then satisfied or that the issuance of such Letter of Credit would violate
Section 2.01(b), then such Issuing Bank may issue the requested Letter of
Credit for the account of the Borrower in accordance with the Issuing Bank's
usual and customary practices. Upon its issuance, extension or amendment of
any Letter of Credit, such Issuing Bank shall promptly notify the
Administrative Agent of such issuance, extension or amendment, which notice
shall be accompanied by a copy of the issued Letter of Credit or amendment,
as the case may be.
2.03 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately
upon the issuance by any Issuing Bank of any Letter of Credit, such Issuing
Bank shall be deemed to have sold and transferred to each Bank with a Basic
Revolving Loan Commitment, other than such Issuing Bank (each such Bank, in
its capacity under this Section 2.03, a "Participant"), and each such
Participant shall be deemed irrevocably and unconditionally to have purchased
and received from such Issuing Bank, without recourse or warranty, an
undivided interest and participation, to the extent of such Participant's BRL
Percentage, in such Letter of Credit, each drawing made thereunder and the
obligations of the Borrower under this Agreement with respect thereto, and
any security therefor or guaranty pertaining thereto (although the Letter of
Credit Fee shall be payable directly to the Administrative Agent for the
account of the Participants as provided in Section 3.01(b) and the
Participants shall have no right to receive any portion of any Facing Fees).
Upon any change in the Basic Revolving Loan Commitments or BRL Percentages of
the Banks pursuant to Section 1.01(c), 1.13 or 12.04, it is hereby agreed
that, with respect to all outstanding Letters of Credit and Unpaid Drawings,
there shall be an automatic adjustment to the participations pursuant to this
Section 2.03 to reflect the new BRL Percentages of the assignor and assignee
Bank or of all Banks with Basic Revolving Loan Commitments, as the case may
be.
(b) In determining whether to pay under any Letter of
Credit, such Issuing Bank shall have no obligation relative to the other
Banks other than to confirm that any documents required to be delivered under
such Letter of Credit appear to have been delivered and that they appear to
comply on their face with the requirements of such Letter of Credit. Any
action taken or omitted to be taken by any Issuing Bank under or in
connection with any Letter of Credit, if
-19-
taken or omitted in the absence of gross negligence or willful misconduct,
shall not create for such Issuing Bank any resulting liability to the
Borrower or any Bank.
(c) In the event that any Issuing Bank makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed such
amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing
Bank shall promptly notify the Administrative Agent, which shall promptly
notify each Participant of such failure, and each Participant shall promptly
and unconditionally pay to such Issuing Bank the amount of such Participant's
BRL Percentage of such unreimbursed payment in Dollars and in same day funds.
If the Administrative Agent so notifies, prior to 12:00 Noon (New York time)
on any Business Day, any Participant required to fund a payment under a
Letter of Credit, such Participant shall make available to such Issuing Bank
in Dollars such Participant's BRL Percentage of the amount of such payment on
such Business Day in same day funds. If and to the extent such Participant
shall not have so made its BRL Percentage of the amount of such payment
available to such Issuing Bank, such Participant agrees to pay to such
Issuing Bank, forthwith on demand such amount, together with interest
thereon, for each day from such date until the date such amount is paid to
such Issuing Bank at the overnight Federal Funds Rate. The failure of any
Participant to make available to such Issuing Bank its BRL Percentage of any
payment under any Letter of Credit shall not relieve any other Participant of
its obligation hereunder to make available to such Issuing Bank its BRL
Percentage of any Letter of Credit on the date required, as specified above,
but no Participant shall be responsible for the failure of any other
Participant to make available to such Issuing Bank such other Participant's
BRL Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Bank shall pay to
each Participant which has paid its BRL Percentage thereof, in Dollars and in
same day funds, an amount equal to such Participant's share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of
the respective participations.
(e) The obligations of the Participants to make payments
to each Issuing Bank with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower or any of its Subsidiaries may have
at any time against a beneficiary named in a Letter of Credit,
any transferee of any Letter of Credit (or any Person for whom
any such transferee may be acting), the Administrative Agent,
any Issuing Bank, any Participant, or any other Person,
whether in connection with this Agreement, any Letter of
Credit, the
-20-
transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Borrower and
the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the
Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a)
The Borrower hereby agrees to reimburse the respective Issuing Bank, by
making payment to the Administrative Agent in immediately available funds at
the Payment Office, for any payment or disbursement made by it under any
Letter of Credit (each such amount, so paid until reimbursed, an "Unpaid
Drawing"), no later than three Business Days after the date of such payment
or disbursement, with interest on the amount so paid or disbursed by such
Issuing Bank, to the extent not reimbursed prior to 1:00 P.M. (New York time)
on the date of such payment or disbursement, from and including the date paid
or disbursed to but excluding the date such Issuing Bank was reimbursed by
the Borrower therefor at a rate per annum which shall be the Base Rate in
effect from time to time (plus an additional 2% per annum if not reimbursed
by the second Business Day following any such notice of payment or
disbursement), such interest payable on demand. The respective Issuing Bank
shall give the Borrower prompt notice of each Drawing under any Letter of
Credit, PROVIDED that the failure to give any such notice shall in no way
affect, impair or diminish the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section
2.04 to reimburse the respective Issuing Bank with respect to drawings on
Letters of Credit (each, a "Drawing") including, in each case, interest
thereon, shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against any Bank (including in its capacity as
issuer of the Letter of Credit or as Participant), or any nonapplication or
misapplication by the beneficiary of the proceeds of such Drawing, the
respective Issuing Bank's only obligation to the Borrower being to confirm
that any documents required to be delivered under such Letter of Credit
appear to have been delivered and that they appear to comply on their face
with the requirements of such Letter of Credit. Any action taken or omitted
to be taken by any Issuing Bank under or in connection with any Letter of
Credit, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for such Issuing Bank any resulting liability to
the Borrower.
2.05 INCREASED COSTS. If at any time the introduction
after the Restatement Effective Date of, or any change after the Restatement
Effective Date in, any applicable law, rule, regulation, order, guideline or
request or in the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof, or compliance by any Issuing Bank or any Participant, or any
corporation controlling such Person,
-21-
with any request or directive by any such authority (whether or not having
the force of law) issued after the date of this Agreement, shall either (i)
impose, modify or make applicable any reserve, deposit, capital adequacy or
similar requirement against letters of credit issued by any Issuing Bank or
participated in by any Participant, or (ii) impose on any Issuing Bank or any
Participant, or any corporation controlling such Person, any other conditions
relating, directly or indirectly, to this Agreement or any Letter of Credit;
and the result of any of the foregoing is to increase the cost to any Issuing
Bank or any Participant of issuing, maintaining or participating in any
Letter of Credit, or reduce the amount of any sum received or receivable by
any Issuing Bank or any Participant hereunder or reduce the rate of return on
its capital with respect to Letters of Credit (except for changes in the rate
of tax on, or determined by reference to, the net income or profits of such
Issuing Bank or such Participant, or any corporation controlling such Person,
or any franchise tax based on the net income or profits of such Bank or
Participant, or any corporation controlling such Person, in either case
pursuant to the laws of the United States of America, the jurisdiction in
which it is organized or in which its principal office or applicable lending
office is located or any subdivision thereof or therein), but without
duplication of any amounts payable in respect of Taxes pursuant to Section
4.04(a), then, upon demand to the Borrower by such Issuing Bank or any
Participant (a copy of which demand shall be sent by such Issuing Bank or
such Participant to the Administrative Agent) and subject to the provisions
of Section 12.15 (to the extent applicable), the Borrower shall pay to such
Issuing Bank or such Participant such additional amount or amounts as will
compensate such Bank for such increased cost or reduction in the amount
receivable or reduction on the rate of return on its capital. Any Issuing
Bank or any Participant, upon determining that any additional amounts will be
payable pursuant to this Section 2.05, will give prompt written notice
thereof to the Borrower, which notice shall include a certificate submitted
to the Borrower by such Issuing Bank or such Participant (a copy of which
certificate shall be sent by such Issuing Bank or such Participant to the
Administrative Agent), setting forth in reasonable detail the basis for the
calculation of such additional amount or amounts necessary to compensate such
Issuing Bank or such Participant.
SECTION 3. FEES; REDUCTIONS OF COMMITMENT.
3.01 FEES. (a) (i) The Borrower agrees to pay the
Administrative Agent for distribution to each Bank with a Basic Revolving
Loan Commitment a commitment fee (the "BRL Commitment Fee") for the period
from the Restatement Effective Date to and including the Revolving Loan
Maturity Date (or such earlier date as the Total Basic Revolving Loan
Commitment shall have been terminated), computed at a rate for each day equal
to the Applicable Commitment Fee Percentage for Basic Revolving Loans for
such day multiplied by the daily Unutilized Basic Revolving Loan Commitment
of such Bank. Accrued BRL Commitment Fees shall be due and payable quarterly
in arrears on each Quarterly Payment Date and on the Revolving Loan Maturity
Date or such earlier date upon which the Total Basic Revolving Loan
Commitment is terminated.
(ii) The Borrower agrees to pay the Administrative Agent
for distribution to each Bank with a Supplemental Revolving Loan Commitment a
commitment fee (the "SRL Commitment Fee", and together with the BRL
Commitment Fee, the "Commitment Fee") for the period from the Restatement
Effective Date to and including the final SRL Commitment
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Expiration Date (or the Conversion Date in the case of Non-Extending Banks
only) or such earlier date as the Total Supplemental Revolving Loan
Commitment shall have been terminated, computed at a rate for each day equal
to the Applicable Commitment Fee Percentage for Supplemental Revolving Loans
for such day multiplied by the daily Unutilized Supplemental Revolving Loan
Commitment of such Bank. Accrued SRL Commitment Fees shall be due and
payable quarterly in arrears on each Quarterly Payment Date and on the final
SRL Commitment Expiration Date (or the Conversion Date in the case of
Non-Extending Banks only) or such earlier date upon which the Total
Supplemental Revolving Loan Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative
Agent for distribution to each Bank with a Basic Revolving Loan Commitment
(based on their respective BRL Percentages) a fee in respect of each Letter
of Credit issued hereunder (the "Letter of Credit Fee"), for the period from
and including the date of issuance of such Letter of Credit to and including
the termination of such Letter of Credit, computed for each day at a rate
equal to the Applicable Eurodollar Margin for such day multiplied by the
daily Stated Amount of such Letter of Credit. Accrued Letter of Credit Fees
shall be due and payable quarterly in arrears on each Quarterly Payment Date
and upon the first day on or after the termination of the Total Basic
Revolving Loan Commitment upon which no Letters of Credit remain outstanding.
(c) The Borrower agrees to pay to the respective Issuing
Bank, for its own account, a facing fee in respect of each Letter of Credit
issued for its account hereunder (the "Facing Fee") for the period from and
including the date of issuance of such Letter of Credit to and including the
termination of such Letter of Credit, computed at a rate equal to 1/8 of 1%
per annum of the daily Stated Amount of such Letter of Credit. Accrued
Facing Fees shall be due and payable quarterly in arrears on each Quarterly
Payment Date and on the date upon which the Total Basic Revolving Loan
Commitment has been terminated and such Letter of Credit no longer remains
outstanding.
(d) The Borrower shall pay, upon each drawing under,
issuance of, or amendment to, any Letter of Credit, such amount as shall at
the time of such event be the administrative charge and out-of-pocket
expenses which the respective Issuing Bank is generally imposing in
connection with such occurrence with respect to standby letters of credit.
(e) The Borrower agrees to pay to the Administrative
Agent, for its own account, an administrative fee in the amount of $3,000 in
respect of each Competitive Bid Borrowing requested by the Borrower, which
fee shall be due and payable (whether or not an offer is made by a Bidder
Bank or an offer is accepted by the Borrower) on the later of (x) the Reply
Date and (y) the date of the Competitive Bid Borrowing.
(f) The Borrower shall pay to the Agents, for their own
account, such other fees as have been agreed to in writing by the Borrower
and the Agents.
3.02 VOLUNTARY TERMINATION OF COMMITMENTS. (a) Upon at
least three Business Days' prior written notice (or telephonic notice
confirmed in writing) to the Administrative Agent at its Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the
Banks), the Borrower shall have the right, at any time or from time to time,
without premium or
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penalty, to terminate the Total Unutilized Basic Revolving Loan Commitment,
in whole or in part, and/or the Total Unutilized Supplemental Revolving Loan
Commitment, in whole or in part, PROVIDED that partial reductions of either
of such Commitments shall be in an amount of $5,000,000 or integral multiples
of $1,000,000 in excess thereof, PROVIDED that each such reduction pursuant
to this clause (a) shall apply proportionately to permanently reduce the
Basic Revolving Loan Commitment and/or the Supplemental Revolving Loan
Commitment, as the case may be, of each Bank with such a Commitment or
Commitments.
(b) In the event of certain refusals by a Bank to
consent to certain proposed changes, waivers, discharges or terminations with
respect to this Agreement which have been approved by the Required Banks as
provided in Section 12.12(b), the Borrower shall have the right, upon five
Business Days' prior written notice to the Administrative Agent at its Notice
Office (which notice the Administrative Agent shall promptly transmit to each
of the Banks), to terminate the entire Basic Revolving Loan Commitment and
Supplemental Revolving Loan Commitment of such Bank, so long as all Loans,
together with accrued and unpaid interest, Fees and all other amounts, owing
to such Bank are repaid concurrently with the effectiveness of such
termination pursuant to Section 4.01(b), and the Borrower shall pay to the
Administrative Agent at such time an amount in cash and/or cash equivalents
equal to such Bank's applicable BRL Percentage of the Letter of Credit
Outstandings (which cash and/or cash equivalents shall be held by the
Administrative Agent as security for the obligations of the Borrower
hereunder in respect of such outstanding Letters of Credit pursuant to a cash
collateral agreement to be entered into in form and substance reasonably
satisfactory to the Administrative Agent (at which time Schedule I shall be
deemed modified to reflect such changed amounts)), and at such time, such
Bank shall no longer constitute a "Bank" for purposes of this Agreement,
except with respect to indemnifications under this Agreement pursuant to
Sections 1.10, 1.11, 2.05, 4.04, 12.01 and 12.06, which shall survive as to
such repaid Bank.
3.03 MANDATORY REDUCTION OF COMMITMENTS. (a) The Total
Commitment and the Term Loan Commitment, the Revolving Loan Commitment and
the Supplemental Revolving Loan Commitment of each Bank shall terminate in
their entirety on December 31, 1997 and the Existing Credit Agreement shall
continue in effect unless the Restatement Effective Date shall have occurred
on or before such date.
(b) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, the Total Term Loan Commitment (and
the Term Loan Commitment of each Bank) shall terminate in its entirety on the
Restatement Effective Date (after giving effect to the making of the Term
Loans on such date).
(c) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, the Total Basic Revolving Loan
Commitment and the Basic Revolving Loan Commitment of each Bank shall
terminate in their entirety on the Revolving Loan Maturity Date.
(d) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, the Total Supplemental Revolving
Loan Commitment and the Supplemental Revolving Loan Commitment of each Bank
shall terminate in their entirety on the final SRL
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Commitment Expiration Date and the Supplemental Revolving Loan Commitment of
each Non-Extending Bank shall terminate in its entirety on the Conversion
Date with respect to such Non-Extending Bank.
(e) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, on each date after the Restatement
Effective Date upon which a mandatory prepayment of Term Loans and
Supplemental Term Loans pursuant to Section 4.02(c) or (d) is required (and
exceeds in amount the aggregate principal amount of Term Loans and
Supplemental Term Loans then outstanding) or would be required if Term Loans
or Supplemental Term Loans were then outstanding, the Total Basic Revolving
Loan Commitment and/or the Total Supplemental Revolving Loan Commitment shall
be permanently reduced (the amount of such mandatory commitment reduction to
be applied to such Commitments on a pro rata basis) by the amount, if any, by
which the amount required to be applied pursuant to said Section (determined
as if an unlimited amount of Term Loans and Supplemental Term Loans were
actually outstanding) exceeds the aggregate principal amount of Term Loans
and Supplemental Term Loans then outstanding.
(f) Each reduction to the Total Term Loan Commitment,
Total Basic Revolving Loan Commitment and the Total Supplemental Revolving
Loan Commitment pursuant to this Section 3.03 shall be applied
proportionately to reduce the Term Loan Commitment, the Basic Revolving Loan
Commitment or the Supplemental Revolving Loan Commitment, as the case may be,
of each Bank with such a Commitment.
SECTION 4. PREPAYMENTS; PAYMENTS; TAXES.
4.01 VOLUNTARY PREPAYMENTS. (a) The Borrower shall
have the right to prepay the Loans, without premium or penalty, in whole or
in part at any time and from time to time on the following terms and
conditions: (i) the Borrower shall give the Administrative Agent prior to
12:00 Noon (New York time) at its Notice Office at least one Business Day's
prior written notice (or telephonic notice promptly confirmed in writing) of
its intent to prepay such Loans, whether Term Loans, Basic Revolving Loans,
Supplemental Revolving Loans, Supplemental Term Loans or Competitive Bid
Loans (if applicable) shall be prepaid, the amount of such prepayment and the
Types of Loans to be prepaid and, in the case of Eurodollar Loans, the
specific Borrowing or Borrowings pursuant to which made, which notice the
Administrative Agent shall promptly transmit to each of the Banks; (ii) each
prepayment (except any prepayment in full of a Borrowing) shall be in a
minimum amount of $1,000,000 and, if greater, shall be in integral multiples
thereof, PROVIDED that if any partial prepayment of Eurodollar Loans made
pursuant to any Borrowing shall reduce the outstanding Eurodollar Loans made
pursuant to such Borrowing to an amount less than $10,000,000 then such
Borrowing may not be continued as a Borrowing of Eurodollar Loans and any
election of an Interest Period with respect thereto given by the Borrower
shall have no force or effect; (iii) at the time of any prepayment of
Eurodollar Loans pursuant to this Section 4.01 on any day other than the last
day of an Interest Period applicable thereto or any prepayment of Competitive
Bid Loans on any day other than the maturity date thereof, the Borrower shall
pay the amounts then required pursuant to Section 1.11; (iv) except as
provided in clause (b) of this Section 4.01, each prepayment in respect of
any Loans made
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pursuant to a Borrowing shall be applied PRO RATA among the Banks which made
such Loans; and (v) each voluntary prepayment of Term Loans pursuant to this
Section 4.01(a) shall be applied pursuant to the terms of Section 4.02(e).
Notwithstanding anything to the contrary contained in this Section 4.01, the
Borrower shall have the right to voluntarily prepay any Competitive Bid Loan
only to the extent that the Borrower has a Voluntary Prepayment Right with
respect to such Competitive Bid Loan.
(b) In the event of certain refusals by a Bank to
consent to certain proposed changes, waivers, discharges or terminations with
respect to this Agreement which have been approved by the Required Banks as
provided in Section 12.12(b), the Borrower shall have the right, upon five
Business Days' prior written notice to the Administrative Agent at its Notice
Office (which notice the Administrative Agent shall promptly transmit to each
of the Banks) to repay all Loans, together with accrued and unpaid interest,
Fees and all other amounts owing to such Bank in accordance with said Section
12.12(b) so long as (A) in the case of the repayment of Basic Revolving Loans
and/or Supplemental Revolving Loans of any Bank pursuant to this clause (b)
the Basic Revolving Loan Commitment (if any) and Supplemental Revolving Loan
Commitment (if any) of such Bank are terminated concurrently with such
repayment pursuant to Section 3.02(b) (at which time Schedule I shall be
deemed modified to reflect the changed Basic Revolving Loan and Supplemental
Revolving Loan Commitments) and (B) in the case of the repayment of Loans of
any Bank the consents required by Section 12.12(b) in connection with the
repayment pursuant to this clause (b) shall have been obtained; PROVIDED that
repayments of Term Loans pursuant to this clause (b) shall only apply to
reduce the then remaining Scheduled Repayments to the extent such Term Loans
so repaid are not replaced pursuant to Section 12.12(b), with any such
reductions to reduce the then remaining Scheduled Repayments on a PRO RATA
basis (based upon the then remaining amount of Scheduled Repayments after
giving effect to all prior reductions thereto).
4.02 MANDATORY REPAYMENTS. (a) (i) On any day on which
the sum of the aggregate outstanding principal amount of the Basic Revolving
Loans, BRL Competitive Bid Loans and the Letter of Credit Outstandings
exceeds the Total Basic Revolving Loan Commitment as then in effect, the
Borrower shall prepay on such date the principal of Basic Revolving Loans of
the Banks in an amount equal to such excess. If, after giving effect to the
prepayment of all Basic Revolving Loans of Banks, the aggregate amount of the
BRL Competitive Bid Loans and the Letter of Credit Outstandings exceeds the
Total Basic Revolving Loan Commitment as then in effect, the Borrower shall
pay to the Administrative Agent at the Payment Office on such date an amount
of cash or cash equivalents equal to the amount of such excess (up to a
maximum amount equal to the Letter of Credit Outstandings at such time), such
cash or cash equivalents to be held as security for all obligations of the
Borrower to Banks hereunder in connection with such Letter of Credit
Outstandings in a cash collateral account to be established by the
Administrative Agent. If, after giving effect to the prepayment of all Basic
Revolving Loans of Banks and the cash collateralization of all Letter of
Credit Outstandings as set forth above, the remaining aggregate principal
amount of BRL Competitive Bid Loans exceeds the Total Basic Revolving Loan
Commitment as then in effect, the Borrower shall repay on such date the
principal of BRL Competitive Bid Loans having a Voluntary Prepayment Right in
an aggregate amount equal to such excess (up to a maximum amount equal to the
principal of
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BRL Competitive Bid Loans having a Voluntary Prepayment Right outstanding at
such time), PRO RATA among such BRL Competitive Bid Loans outstanding at such
time. If, after giving effect to the prepayment referred to in the
immediately preceding sentence, the remaining aggregate principal amount of
BRL Competitive Bid Loans exceeds the Total Basic Revolving Loan Commitment
as then in effect, the Borrower shall repay on such date the principal of
such BRL Competitive Bid Loans in an aggregate amount equal to such excess,
PRO RATA among such BRL Competitive Bid Loans outstanding at such time,
provided that no BRL Competitive Bid Loan shall be prepaid pursuant to this
sentence unless the Bank that made same consents to such prepayment, PROVIDED
FURTHER, that to the extent any Bank does not consent to the repayment of a
BRL Competitive Bid Loan the Borrower shall pay to the Administrative Agent
at the Payment Office on such date an amount of cash or cash equivalents
equal to the amount of such BRL Competitive Bid Loan, such cash or cash
equivalents to be held as security for all obligations of the Borrower in
respect of such BRL Competitive Bid Loan in a cash collateral account to be
established by the Administrative Agent.
(ii) On any day on which the sum of the aggregate
outstanding principal amount of the Supplemental Revolving Loans and SRL
Competitive Bid Loans exceeds the Total Supplemental Revolving Loan
Commitment as then in effect, the Borrower shall prepay on such date the
principal of Supplemental Revolving Loans of the Banks in an amount equal to
such excess. If, after giving effect to the prepayment of all Supplemental
Revolving Loans of Banks, the remaining aggregate principal amount of all SRL
Competitive Bid Loans exceeds the Total Supplemental Revolving Loan
Commitment as then in effect, the Borrower shall repay on such date the
principal of SRL Competitive Bid Loans having a Voluntary Prepayment Right in
an aggregate amount equal to such excess (up to a maximum amount equal to the
principal of SRL Competitive Bid Loans having a Voluntary Prepayment Right
outstanding at such time), PRO RATA among such SRL Competitive Bid Loans
outstanding at such time. If, after giving effect to the prepayment referred
to in the immediately preceding sentence, the remaining aggregate principal
amount of SRL Competitive Bid Loans exceeds the Total Supplemental Revolving
Loan Commitment as then in effect, the Borrower shall repay on such date the
principal of such SRL Competitive Bid Loans in an aggregate amount equal to
such excess, PRO RATA among such SRL Competitive Bid Loans outstanding at
such time, provided that no SRL Competitive Bid Loan shall be prepaid
pursuant to this sentence unless the Bank that made same consents to such
prepayment, PROVIDED FURTHER, that to the extent any Bank does not consent to
the repayment of an SRL Competitive Bid Loan the Borrower shall pay to the
Administrative Agent at the Payment Office on such date an amount of cash or
cash equivalents equal to the amount of such SRL Competitive Bid Loan, such
cash or cash equivalents to be held as security for all obligations of the
Borrower in respect of such SRL Competitive Bid Loan in a cash collateral
account to be established by the Administrative Agent.
(b) (i) In addition to any other mandatory repayments
pursuant to this Section 4.02, on each date set forth below, the Borrower
shall be required to repay that principal amount of Term Loans, to the extent
then outstanding, as is set forth opposite such date (each such repayment, as
the same may be reduced as provided in Section 4.01(b) or Section 4.02(e), a
"Scheduled Repayment"):
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Scheduled Repayment Date Amount
------------------------ ------
April 15, 2001 $50,000,000
January 15, 2002 $50,000,000
Term Loan Maturity Date $50,000,000
(ii) In addition to any other mandatory repayments
pursuant to this Section 4.02, on the Supplemental Term Loan Maturity Date,
the Borrower shall be required to repay the aggregate principal amount of all
Supplemental Term Loans, if any, then outstanding.
(c) In addition to any other mandatory repayments
pursuant to this Section 4.02, on each date after the Restatement Effective
Date upon which Holdings or any of its Subsidiaries receives any proceeds
from any incurrence by Holdings or any of its Subsidiaries of Indebtedness
required to be applied pursuant to this Section in accordance with Section
8.06(d) or 8.06(e), an amount equal to the amount required by Section 8.06(d)
or 8.06(e), as the case may be, shall be applied as a mandatory repayment of
principal of outstanding Term Loans and Supplemental Term Loans (such
mandatory repayment to be applied on a PRO RATA basis among such Tranches
based on the then applicable TL Facility Percentage and STL Facility
Percentage) in accordance with the requirements of Sections 4.02(e) and (f).
(d) In addition to any other mandatory repayments
pursuant to this Section 4.02, on each date after the Restatement Effective
Date upon which Holdings or any of its Subsidiaries receives proceeds from
any sale of assets required to be applied pursuant to this Section in
accordance with Section 8.03, an amount equal to the amount required by
Section 8.03 shall be applied as a mandatory repayment of principal of
outstanding Term Loans and Supplemental Term Loans (such mandatory repayment
to be applied on a PRO RATA basis among such Tranches based on the then
applicable TL Facility Percentage and STL Facility Percentage) in accordance
with the requirements of Sections 4.02(e) and (f).
(e) Each amount applied to repay Term Loans pursuant to
Section 4.01(a) and Sections 4.02(c) and (d) shall be applied to reduce the
then remaining Scheduled Repayments (x) in the chronological order of
maturity with respect to the Scheduled Repayments which mature within twelve
months following the date of such repayment and (y) PRO RATA with respect to
Scheduled Repayments which mature thereafter, each such application to be
based upon the then remaining amount of Scheduled Repayments after giving
effect to all prior reductions thereto.
(f) With respect to each repayment of Loans required by
this Section 4.02, the Borrower may designate the Types of Loans which are to
be repaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings of the respective Tranche pursuant to which made, PROVIDED that:
(i) if any repayment of Eurodollar Loans made pursuant to a single Borrowing
shall reduce the outstanding Eurodollar Loans made pursuant to such Borrowing
to an amount less than $10,000,000, such Borrowing shall be converted at the
end of the then current Interest Period into a Borrowing of Base Rate Loans;
and (ii) each repayment of any Loans made pursuant to a Borrowing shall be
applied PRO RATA among the Banks making such Loans. In the absence of a
designation by the Borrower as described in the preceding sentence, the
Administrative Agent shall, subject to the above, make such designation in
its sole discretion.
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4.03 METHOD AND PLACE OF PAYMENT. Except as otherwise
specifically provided herein, all payments under this Agreement or any Note
shall be made to the Administrative Agent for the account of the Bank or
Banks entitled thereto not later than 1:00 P.M. (New York time) on the date
when due and shall be made in Dollars in immediately available funds at the
Payment Office of the Administrative Agent. Whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable at the applicable rate during such extension.
4.04 NET PAYMENTS. (a) All payments made by the
Guarantors or the Borrower hereunder or under any Note will be made without
set-off, counterclaim or other defense. Except as provided in Section
4.04(b), all such payments will be made free and clear of, and without
deduction or withholding for, any present or future taxes, levies, imposts,
duties, fees, assessments or other charges of whatever nature now or
hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, (i) any tax
imposed on or measured by the net income or profits of a Bank, or any
franchise tax based on the net income or profits of a Bank, in either case
pursuant to the laws of the United States of America or any political
subdivision or taxing authority thereof or therein or the jurisdiction in
which it is organized or in which the principal office or applicable lending
office of such Bank is located or any subdivision thereof or therein, and
(ii) in the case of any Bank organized under the laws of any jurisdiction
other than the United States of America or any State thereof (including the
District of Columbia), any taxes imposed by the United States of America by
means of withholding at the source unless such withholding results from a
change in applicable law or treaty subsequent to the date such Bank becomes a
Bank with respect to the Loan or portion thereof affected by such change) and
all interest, penalties or similar liabilities with respect thereto (all such
non-excluded taxes, levies, imports, duties, fees, assessments or other
charges being referred to collectively as "Taxes"). If any Taxes are so
levied or imposed, the Borrower agrees to pay the full amount of such Taxes,
and such additional amounts as may be necessary so that every payment of all
amounts due under this Agreement or under any Note, after withholding or
deduction for or on account of any Taxes, will not be less than the amount
provided for herein or in such Note. If any amounts are payable in respect
of Taxes pursuant to the preceding sentence of this Section 4.04(a), then the
Borrower agrees to reimburse each Bank, upon the written request of such
Bank, for taxes imposed on or measured by the net income or profits of such
Bank, or any franchise tax based on the net income or profits of such Bank,
in either case pursuant to the laws of the jurisdiction in which the
principal office or applicable lending office of such Bank is located or
under the laws of any political subdivision or taxing authority of any such
jurisdiction in which the principal office or applicable lending office of
such Bank is located and for any withholding of income or similar taxes
imposed by the United States of America as such Bank shall determine are
payable by, or withheld from, such Bank in respect of such amounts so paid to
or on behalf of such Bank pursuant to the preceding sentence and in respect
of any amounts paid to or on behalf of such Bank pursuant to this sentence.
Such written request shall set forth the amount of net income or profits or
franchise taxes payable by, or withheld from, such Bank pursuant to the
immediately preceding sentence and shall be certified by an appropriate
officer of such Bank. The Borrower will pay any such Taxes required
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to be paid pursuant to this Section 4.04(a) within the time allowed for such
payment under applicable law and will furnish to the Administrative Agent
within 45 days after the date the payment of any Taxes is made to the
relevant taxation or other authority pursuant to applicable law certified
copies of tax receipts evidencing such payment by the Borrower. The Borrower
agrees to indemnify and hold harmless each Bank, and reimburse such Bank upon
its written request, for the amount of any Taxes so levied or imposed and
paid by such Bank.
(b) Each Bank which is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) agrees to deliver to
the Borrower and the Administrative Agent on or prior to the Restatement
Effective Date or in the case of a Bank that is an assignee or transferee of
an interest under this Agreement pursuant to Sections 1.13 or 12.04 (unless
the respective Bank was already a Bank hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Bank, (i) two accurate and complete original signed copies of Internal
Revenue Service Form 4224 or Form 1001 (or successor forms) certifying to
such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement and
under any Note, or (ii) if the Bank is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form 1001 or 4224 pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit E (any such certificate, a "Section
4.04(b)(ii) Certificate") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8 (or successor form) certifying to
such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this
Agreement and under any Note. In addition, each Bank agrees that from time
to time after the Restatement Effective Date, when a lapse in time or change
in circumstances renders the previous certification obsolete or inaccurate in
any material respect, it will deliver to the Borrower and the Administrative
Agent two new accurate and complete original signed copies of Internal
Revenue Service Form 4224 or 1001, or Form W-8 and a Section 4.04(b)(ii)
Certificate, as the case may be, and such other forms as may be required in
order to confirm or establish the entitlement of such Bank to a continued
exemption from or reduction in United States withholding tax with respect to
payments under this Agreement and any Note, or it shall immediately notify
the Borrower and the Administrative Agent of its inability to deliver any
such form or Certificate. Notwithstanding anything to the contrary contained
in Section 4.04(a), but subject to Section 12.04(b) and the immediately
succeeding sentence, (x) the Borrower shall be entitled, to the extent it is
required to do so by law, to deduct or withhold income or similar taxes
imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, fees or other amounts payable
hereunder for the account of any Bank which is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal
income tax purposes to the extent that such Bank has not provided to the
Borrower U.S. Internal Revenue Service Forms that establish a complete
exemption from such deduction or withholding and (y) the Borrower shall not
be obligated pursuant to Section 4.04(a) hereof to gross-up payments to be
made to a Bank in respect of income or similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or therein)
if (I) such Bank has not provided to the Borrower the Internal Revenue
Service Forms and, if applicable, certificate required to be provided to the
Borrower pursuant to this Section 4.04(b) or (II) in the case of a payment,
other than interest, to a Bank described in clause (ii) above, to the extent
that
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such Forms and, if applicable, certificate do not establish a complete
exemption from withholding of such taxes. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this Section
4.04 and except as set forth in Section 12.04(b), the Borrower agrees to pay
additional amounts and to indemnify each Bank in the manner set forth in
Section 4.04(a) (without regard to the identity of the jurisdiction requiring
the deduction or withholding) in respect of any amounts deducted or withheld
by it as described in the immediately preceding sentence as a result of any
changes after the Restatement Effective Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the official
interpretation thereof, relating to the deducting or withholding of income or
similar Taxes.
(c) The provisions of this Section 4.04 are subject to
the provisions of Section 12.15 (to the extent applicable).
SECTION 5.A. CONDITIONS PRECEDENT TO INITIAL CREDIT
EVENTS. The obligation of each Bank to make Loans and to participate in
Letters of Credit on the Restatement Effective Date, and the obligations of
each Issuing Bank to issue Letters of Credit on the Restatement Effective
Date, are subject to the satisfaction of the following conditions:
5A.01 EXECUTION OF AGREEMENT; NOTES. On or prior to the
Restatement Effective Date (i) this Agreement shall have been executed and
delivered as provided in Section 12.10 and (ii) there shall have been
delivered to the Administrative Agent for the account of each of the Banks
the appropriate Term Note, Revolving Note and/or Supplemental Revolving Note
executed by the Borrower, in each case in the amount and maturity and as
otherwise provided herein.
5A.02 OFFICERS' CERTIFICATE. (a) The Documentation
Agent shall have received a certificate dated the Restatement Effective Date
and signed by an Authorized Officer of the Borrower stating that all of the
applicable conditions set forth in Sections 5A.06, 5A.07, 5A.11 and 5B.02
have been satisfied as of such date.
(b) The Documentation Agent shall have received a
certificate dated the Restatement Effective Date and signed by an Authorized
Officer of Holdings (i) stating that Holdings is in compliance with Sections
8.09 and 8.10 as of the last day of the fiscal quarter ended September 30,
1997 and (ii) setting forth the calculations required to establish such
compliance.
5A.03 OPINIONS OF COUNSEL. The Documentation Agent
shall have received opinions, in form and substance satisfactory to the
Documentation Agent, addressed to each of the Agents and the Banks and dated
the Restatement Effective Date, from (i) Xxxxxxx X. Xxxxxxxxx, Esq., Senior
Vice President, General Counsel and Secretary of Holdings, NWA and the
Borrower, which opinion shall cover the matters contained in Exhibit F-1
hereto and (ii) White & Case, special counsel to the Agents, which opinion
shall cover the matters contained in Exhibit F-2 hereto.
5A.04 CORPORATE DOCUMENTS; PROCEEDINGS; ETC. (a) The
Documentation Agent shall have received from each Credit Party a certificate,
dated the Restatement Effective Date,
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signed by an Authorized Officer, and attested to by the Secretary or any
Assistant Secretary, of such Credit Party, (x) certifying that the
certificate of incorporation and by-laws of such Credit Party attached
thereto are true and correct copies thereof and (y) to the effect that such
Credit Party is in good standing in its respective state of incorporation.
(b) All corporate and legal proceedings and all
instruments and agreements in connection with the transactions contemplated
by this Agreement and the other Credit Documents shall be satisfactory in
form and substance to the Documentation Agent, and the Documentation Agent
shall have received all information and copies of all certificates, documents
and papers, including records of corporate proceedings, governmental
approvals, good standing certificates and bring-down telegrams or facsimiles,
if any, which the Documentation Agent may have requested in connection
therewith, such documents and papers, where appropriate, to be certified by
proper corporate or governmental authorities.
5A.05 CONSENT LETTER. The Documentation Agent shall
have received a letter from CT Corporation System, presently located at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, substantially in the form of Exhibit G,
indicating its consent to its appointment by each Credit Party as its agent
to receive service of process as specified in Section 12.08.
5A.06 ADVERSE CHANGE, ETC. After giving effect to the
transactions contemplated hereby, nothing shall have occurred which has had a
material adverse effect on the rights or remedies of the Agents or the Banks,
or on the ability of the Credit Parties to perform their respective
obligations to the Agents and the Banks or which has had a material adverse
effect on the results of operations or financial condition of Holdings and
its Subsidiaries taken as a whole or the Borrower and its Subsidiaries taken
as a whole.
5A.07 LITIGATION. No actions, suits or proceedings by
any entity (private or governmental) shall be pending or threatened (a) with
respect to the Transaction or this Agreement or any documentation executed in
connection therewith, or (b) which has had a materially adverse effect on
(i) the Transaction, (ii) the results of operations or financial condition of
Holdings and its Subsidiaries taken as a whole or of the Borrower and its
Subsidiaries taken as whole or (iii) the rights or remedies of the Banks
hereunder or under any other Credit Document or on the ability of any Credit
Party to perform its respective obligations to the Banks hereunder or under
any other Credit Document.
5A.08 FINANCIAL OUTLOOK. The Banks shall have received
the Financial Outlook which shall be in form and substance reasonably
satisfactory to the Documentation Agent and the Required Banks.
5A.09 EXISTING CREDIT AGREEMENT. On the Restatement
Effective Date, (i) each Existing Bank shall have surrendered to the
Administrative Agent for cancellation the promissory notes issued to it
pursuant to the Existing Credit Agreement in respect of its Existing Loans,
(ii) each Continuing Bank shall have converted its Existing Loans, as
contemplated by Sections 1.01(a) and (b), (iii) all Existing Loans being
converted as described in preceding clause (ii) which were outstanding as
Eurodollar Loans shall, at the time of such conversion, be converted into
Base Rate Loans or borrowed as Eurodollar Loans in accordance with Sections
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1.01(a) and (b) and the Borrower shall pay all breakage costs in accordance
with the provisions of Section 1.11 of the Existing Credit Agreement in
connection therewith, (iv) each Existing Bank shall have received payment in
full of all amounts then due and owing to it under the Existing Credit
Agreement, (v) the Borrower shall have paid all accrued and unpaid interest
and fees owing under the Existing Credit Agreement through the Restatement
Effective Date, and (vi) the Administrative Agent shall have received
evidence in form, scope and substance satisfactory to it that the matters set
forth in this Section 5A.09 have been satisfied on such date.
5A.10 FEES, ETC. The Borrower shall have paid to the
Agents and the Banks all costs, fees and expenses (including, without
limitation, legal fees and expenses) payable to the Agents and the Banks to
the extent then due.
5A.11 APPRAISAL OF POOL ASSETS. (a) The Compliance
Agent shall have received an Appraisal with respect to the Pool Assets
setting forth the Appraised Value of each Pool Asset as of the Restatement
Effective Date.
(b) After giving effect to the Credit Events occurring
on the Restatement Effective Date, (i) the Appraised Value of the Pool Assets
shall be equal to or greater than 1.5 times the sum of the Total Basic
Revolving Loan Commitment (or after the termination thereof, the total amount
of Basic Revolving Loans outstanding, Letter of Credit Outstandings and BRL
Competitive Bid Loans outstanding) plus the Total Supplemental Revolving Loan
Commitment (or after the termination thereof, the total amount of
Supplemental Revolving Loans and SRL Competitive Bid Loans outstanding) plus
the aggregate amount of Term Loans and Supplemental Term Loans outstanding
and (ii) the Appraised Value of the portion of the Pool Assets which consists
of Stage III Aircraft shall be equal to or greater than 1.25 times the sum of
the Total Basic Revolving Loan Commitment (or after the termination thereof,
the total amount of outstanding Basic Revolving Loans, Letter of Credit
Outstandings and BRL Competitive Bid Loans outstanding) plus the Total
Supplemental Revolving Loan Commitment (or after the termination thereof, the
total amount of Supplemental Revolving Loans and SRL Competitive Bid Loans
outstanding) plus the aggregate amount of Term Loans and Supplemental Term
Loans outstanding (such calculations in clauses (i) and (ii), the "Coverage
Tests").
(c) At the time of the initial Credit Event the Pool
Assets shall consist only of Stage III Aircraft, other aircraft and "slots".
SECTION 5B. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS.
The obligation of each Bank to make Loans (including Loans made on the
Restatement Effective Date), and to participate in Letters of Credit
(including Letters of Credit issued on the Restatement Effective Date), and
the obligations of each Issuing Bank to issue Letters of Credit (including
Letters of Credit issued on the Restatement Effective Date), is subject, at
the time of each such Credit Event (except as hereinafter indicated), to the
satisfaction of the following conditions:
5B.01 NOTICE OF BORROWING; LETTER OF CREDIT REQUEST;
NOTICE OF COMPETITIVE BID BORROWING. (a) Prior to the making of each Term
Loan, Basic Revolving Loan or Supplemental Revolving Loan, the Administrative
Agent shall have received a Notice of Borrowing meeting the requirements of
Section 1.03(a).
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(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Bank shall have received a
Letter of Credit Request meeting the requirements of Section 2.02.
(c) Prior to the making of each Competitive Bid Loan,
the Administrative Agent shall have received a Notice of Competitive Bid
Borrowing meeting the requirements of Section 1.03A(a).
5B.02 NO DEFAULT; REPRESENTATIONS AND WARRANTIES.
At the time of each such Credit Event and also after giving effect thereto
(i) there shall exist no Default or Event of Default and (ii) all
representations and warranties contained herein or in any other Credit
Document shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on the
date of such Credit Event (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date).
The acceptance of the benefits of each Credit Event shall
constitute a representation and warranty by each Credit Party to each Agent
and each of the Banks that all of the conditions specified in Section 5A and
in this Section 5B which are applicable to such Credit Event exist as of that
time. All of the Notes, certificates, legal opinions and other documents and
papers referred to in Section 5A and in this Section 5B, unless otherwise
specified, shall be delivered to the Documentation Agent at the Documentation
Agent's Office for the account of each of the Banks and, except for the
Notes, in sufficient counterparts for each of the Banks and shall be
reasonably satisfactory in form and substance to the Banks.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
In order to induce the Banks to enter into this Agreement and to make the
Loans, and issue (or participate in) the Letters of Credit as provided
herein, each Credit Party makes the following representations and warranties
to and agreements with the Banks (in each case solely to the extent
applicable to such Credit Party or its Subsidiaries), all of which shall
survive the execution and delivery of this Agreement and the Notes and the
making of the Loans and the issuance of the Letters of Credit, with the
occurrence of each Credit Event on or after the Restatement Effective Date
being deemed to constitute a representation and warranty that the matters
specified in this Section 6 are true and correct in all material respects on
the date of such Credit Event (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date).
6.01 CORPORATE STATUS. Each Credit Party and each of
its Subsidiaries (i) is a duly organized and validly existing corporation or
other entity in good standing under the laws of the jurisdiction of its
organization, (ii) has the power and authority to own its property and assets
and to transact the business in which it is engaged and presently proposes to
engage and (iii) is duly qualified and is authorized to do business and is in
good standing in each jurisdiction where it is required to be so qualified
and where the failure to be so qualified would have a material adverse
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effect on the results of operations or financial condition of Holdings and
its Subsidiaries taken as a whole or the Borrower and its Subsidiaries taken
as a whole.
6.02 CORPORATE POWER AND AUTHORITY. Each Credit Party
has the power and authority to execute, deliver and perform the terms and
provisions of each of the Credit Documents to which it is party and has taken
all necessary action to authorize the execution, delivery and performance by
it of each of such Credit Documents. Each Credit Party has duly executed and
delivered each of the Credit Documents to which it is party, and each of such
Credit Documents constitutes such Credit Party's legal, valid and binding
obligation enforceable in accordance with its terms, except to the extent
that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws generally
affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
6.03 NO VIOLATION. Neither the execution, delivery or
performance by any Credit Party of the Credit Documents to which it is a
party, nor compliance by it with the terms and provisions thereof, (i) will
contravene in any material respect any provision of any material applicable
law, statute, rule or regulation or any applicable order, writ, injunction or
decree of any court or governmental instrumentality, (ii) will conflict in
any material respect with or result in any material breach of any of the
terms, covenants, conditions or provisions of, or constitute a material
default under, or result in the creation or imposition of (or the obligation
to create or impose) any Lien upon any of the properties or assets of such
Credit Party pursuant to the terms of any material indenture, mortgage, deed
of trust, credit agreement or loan agreement, or any other material
agreement, contract or instrument, to which such Credit Party is a party or
by which it or any of its property or assets is bound or to which it may be
subject or (iii) will violate any provision of the certificate of
incorporation or by-laws of such Credit Party.
6.04 GOVERNMENTAL APPROVALS. No material order,
consent, approval, license, authorization or validation of, or filing,
recording or registration with, or exemption by, any governmental or public
body or authority, or any subdivision thereof, is required to authorize, or
is required in connection with, (i) the execution, delivery and performance
of any Credit Document (other than any such order, consent, approval,
license, authorization, validation, filing, recording, registration or
exemption required to be made or obtained after the Restatement Effective
Date in the ordinary course of business which the Borrower agrees to promptly
obtain as and when required under applicable law) or (ii) the legality,
validity, binding effect or enforceability of any Credit Document.
6.05 FINANCIAL STATEMENTS; FINANCIAL OUTLOOK.
(a)(i) The audited consolidated balance sheets of each of Holdings and its
Subsidiaries and the Borrower and its Subsidiaries at December 31, 1996 and
the related consolidated statements of operations, of common stockholders'
equity (deficit) (in the case of Holdings and its Subsidiaries) and of cash
flows of such parties for the fiscal year ended as of said date, which
financial statements have been examined by Ernst & Young, who delivered an
unqualified opinion in respect therewith and (ii) the unaudited consolidated
balance sheets of each of Holdings and its Subsidiaries and the Borrower and
its Subsidiaries at September 30, 1997 and the related consolidated
statements of
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operations of such parties for the fiscal period ended as of said date, all
of which financial statements referred to in the preceding clauses (i) and
(ii) have heretofore been furnished to each Bank and present fairly in all
material respects the financial position of such entities at the dates of
said statements and the results of operations for the periods covered thereby
in accordance with GAAP consistently applied, except to the extent provided
in the notes to said financial statements and, in the case of the September
30, 1997 statements, subject to normal and recurring year-end audit
adjustments. Since December 31, 1996, there has been no material adverse
change in the financial condition or results of operations of the Borrower or
either Guarantor.
(b) On and as of the Restatement Effective Date, the
Financial Outlook 1997-2002, dated as of December 4, 1997 (the "Financial
Outlook"), previously delivered to the Agents and the Banks, had been
prepared on a basis consistent with the financial statements referred to in
Section 6.05(a) (other than as set forth or presented in such Financial
Outlook), and there are no statements or conclusions in the Financial Outlook
which are based upon or include information known to any Credit Party to be
misleading in any material respect or which fail to take into account
material information regarding the matters reported therein. The Financial
Outlook is based on good faith estimates and assumptions believed by the
Credit Parties to be reasonable at the time made, it being recognized by the
Banks that the Financial Outlook as to future events is not to be viewed as
facts and that actual results during the period or periods covered by the
Financial Outlook may differ from the results set forth in the Financial
Outlook.
6.06 LITIGATION. There are no actions, suits or
proceedings pending or threatened with respect to any Credit Party or any of
its Subsidiaries (i) that have had a material adverse effect on the financial
condition or results of operations of the Borrower or either Guarantor or
(ii) that affect the legality, validity, binding effect or enforceability of
any Credit Document.
6.07 TRUE AND COMPLETE DISCLOSURE. All factual
information (taken as a whole) furnished by or on behalf of any Credit Party
in writing to any Agent or any Bank for purposes of or in connection with
this Agreement, the other Credit Documents or any transaction contemplated
herein or therein is, and all other such factual information (taken as a
whole) hereafter furnished by or on behalf of any such Persons in writing to
any Agent or any Bank will be, true and accurate in all material respects on
the date as of which such information is dated or certified and not
incomplete by omitting to state any fact necessary to make such information
(taken as a whole) not misleading in any material respect at such time in
light of the circumstances under which such information was provided.
6.08 USE OF PROCEEDS; MARGIN REGULATIONS. (a) All
proceeds of the (x) Term Loans shall be used by the Borrower to effect the
Transaction and (y) Basic Revolving Loans and Supplemental Revolving Loans
shall be used by the Borrower (i) to effect the Transaction, (ii) to pay fees
and expenses arising in connection with the Transaction and (iii) for the
working capital purposes of the Borrower and its Subsidiaries.
(b) Not more than 25% of the value of the assets of the
Borrower, or of Holdings and its Subsidiaries on a consolidated basis, shall
constitute Margin Stock. Neither the making of any Loan nor the issuance of
any Letter of Credit nor the use of the proceeds of any thereof will
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violate or be inconsistent with the provisions of Regulation G, T, U or X of
the Board of Governors of the Federal Reserve System.
6.09 COMPLIANCE WITH ERISA. Each Pension Plan has been
operated and administered in compliance with all applicable requirements of
ERISA and, if intended to qualify under Section 401(a) or 403(a) of the Code,
in compliance with all applicable requirements of such provision except where
the failure to so comply would not result in, taking all instances in the
aggregate, liability in excess of $2,000,000. Full payment has been made by
each Credit Party or any of its ERISA Affiliates of all amounts which such
Persons are required under the terms of each Pension Plan and Multiemployer
Plan to have paid as contributions to such Pension Plan and Multiemployer
Plan except where the failure to so comply, taking all instances in the
aggregate, would not result in liability in excess of $2,000,000. None of
the Pension Plans had an accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code), whether or not waived, as
of the last day of the most recent plan year of such Pension Plan. No
Termination Event has occurred or, to the best knowledge of any Credit Party,
is expected by such Credit Party to occur with respect to any Pension Plan or
Multiemployer Plan such that any Credit Party or any of its ERISA Affiliates
would incur, taking all instances in the aggregate, liabilities in excess of
$10,000,000 (such liabilities to include, without limitation, any liability
to the PBGC or to any other party under Sections 4062, 4063 and 4064 of ERISA
or to any Multiemployer Plan determined under Section 4201 ET SEQ. of ERISA)
resulting from or associated with all such Termination Events. No Credit
Party nor any of its ERISA Affiliates has engaged in any transaction in
connection with which any such entity has been or could be subjected to
either a tax imposed by Section 4975 of the Code or the corresponding civil
penalty assessed pursuant to Sections 502(i) and 502(l) of ERISA, which
penalties and taxes for all such transactions are in an aggregate amount in
excess of $2,500,000. Using actuarial assumptions and computation methods
consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of Holdings and its Subsidiaries, the Borrower and its
Subsidiaries and their ERISA Affiliates to all Multiemployer Plans in the
event of a complete withdrawal therefrom, as of the close of the most recent
fiscal year of each such Multiemployer Plan ended prior to the date of the
most recent Credit Event, would not have a material adverse effect upon the
results of operation or financial condition of any Credit Party. No Credit
Party nor any of its Subsidiaries maintains or contributes to any employee
welfare benefit plan (as defined in Section 3(1) of ERISA) which provides
benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or any employee pension benefit plan (as
defined in Section 3(2) of ERISA) the obligations with respect to which would
have a material adverse effect on the ability of any Credit Party to perform
its respective obligations under this Agreement.
6.10 SUBSIDIARIES. Schedule IV correctly sets forth, as
of the Restatement Effective Date, the percentage ownership (direct and
indirect) of Holdings, NWA and the Borrower in each of their respective
Subsidiaries.
6.11 INVESTMENT COMPANY ACT. None of the Credit Parties
or any of their respective Subsidiaries is an "investment company" or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
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6.12 COMPLIANCE WITH STATUTES, ETC. Each Credit Party
and each of its Subsidiaries is in material compliance with all applicable
statutes, regulations and orders of, and all applicable restrictions imposed
by, all governmental bodies, domestic or foreign, in respect of the conduct
of their businesses and the ownership of their properties (including
applicable statutes, regulations, orders and restrictions relating to
environmental standards and controls) except such noncompliances as would
not, in the aggregate, have a material adverse effect on the financial
condition or results of operations of Holdings and its Subsidiaries taken as
a whole or of the Borrower and its Subsidiaries taken as a whole.
6.13 AIR CARRIER. The Borrower is a Certificated Air
Carrier.
SECTION 7. AFFIRMATIVE COVENANTS. Each Credit Party
hereby covenants and agrees (in each case solely to the extent that any
covenant or agreement set forth in this Section 7 is expressly stated to be
applicable to such Credit Party and its Subsidiaries) that on and after the
Restatement Effective Date and until the Total Commitment and all Letters of
Credit have terminated and the Loans, Notes and Unpaid Drawings, together
with interest, Fees and all other Obligations incurred hereunder and
thereunder, are paid in full:
7.01 INFORMATION COVENANTS. Holdings will furnish to
each Bank:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available
and in any event within 120 days after the close of each
fiscal year of Holdings, (i) a copy of the SEC Form 10-K filed
by Holdings with the SEC for such fiscal year, or, if no such
Form 10-K was so filed by Holdings for such fiscal year, the
consolidated balance sheet of Holdings and its Subsidiaries
and whether or not such Form 10-K was filed, of the Borrower
and its Subsidiaries, as at the end of such fiscal year and
the related consolidated statements of operations, of common
stockholders' equity (deficit) (in the case of Holdings and
its Subsidiaries) and of cash flows for such fiscal year,
setting forth comparative consolidated figures as of the end
of and for the preceding fiscal year, and examined by Ernst &
Young (or (x) any other "Big Six" or "Big Four" accounting
firm or (y) any other firm of independent public accountants
of recognized standing selected by Holdings or the Borrower,
as the case may be, and reasonably acceptable to the Required
Banks) whose opinion shall not be qualified as to the scope of
audit or as to the status of Holdings or the Borrower as a
going concern, and (ii) a certificate of such accounting firm
stating that in the course of its regular audit of the
business of Holdings and the Borrower, which audit was
conducted in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge of
any Default or Event of Default which has occurred and is
continuing or, if in the opinion of such accounting firm such
a Default or Event of Default has occurred and is continuing,
a statement as to the nature thereof.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as
available and in any event within 45 days after the close of
each of the first three quarterly accounting periods in each
fiscal year of Holdings, a copy of the SEC Form 10-Q filed by
Holdings with the SEC for such quarterly period, or, if no
such Form 10-Q was so filed by Holdings with respect to any
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such quarterly period, the consolidated balance sheet of
Holdings and its Subsidiaries, and whether or not such Form
10-Q was filed, of the Borrower and its Subsidiaries, as at
the end of such quarterly period and the related consolidated
statements of operations for such quarterly period and for the
elapsed portion of the fiscal year ended with the last day of
such quarterly period and in each case setting forth
comparative consolidated figures as of the end of and for the
related periods in the prior fiscal year, all of which shall
be certified by an Authorized Officer of Holdings or the
Borrower, as the case may be, subject to changes resulting
from audit and normal year-end audit adjustments.
(c) BUDGETS. Not more than 75 days following the
commencement of each fiscal year of the Borrower, a budget of
the Borrower and its Subsidiaries in reasonable detail for
each fiscal month of such fiscal year as is customarily
prepared by management for its internal use setting forth,
with appropriate discussion, the principal assumptions upon
which such budget is based.
(d) OFFICER'S CERTIFICATES. At the time of the delivery
of the financial statements provided for in Section 7.01(a)
and (b), a certificate of an Authorized Officer of Holdings
and the Borrower to the effect that no Default or Event of
Default exists or, if any Default or Event of Default does
exist, specifying the nature and extent thereof and which
certificate shall set forth the calculations required, if any,
to establish whether each Credit Party was in compliance with
the provisions of Sections 8.02, 8.03, 8.04, 8.05, 8.06, 8.08,
8.09 and 8.10 as at the end of such fiscal period or year, as
the case may be.
(e) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in
any event within three Business Days after any senior
financial or legal officer of any Credit Party obtains
knowledge thereof, notice of (x) the occurrence of any event
which constitutes a Default or Event of Default which notice
shall specify the nature thereof, the period of existence
thereof and what action such Credit Party proposes to take
with respect thereto and (y) any litigation or governmental
proceeding pending against or affecting Holdings or any of its
Subsidiaries which is likely to have a material adverse effect
on the financial condition or results of operations of
Holdings and its Subsidiaries taken as a whole or the Borrower
and its Subsidiaries taken as a whole.
(f) RATING CHANGES. Promptly after any senior financial
or legal officer of NWA or the Borrower obtains knowledge
thereof, notice of any change in the Rating assigned by either
Rating Agency.
(g) APPRAISALS. (i) On the eighteen month anniversary
of the Restatement Effective Date and on each one year
anniversary thereafter, an Appraisal of each Pool Asset.
(h) OTHER INFORMATION. Promptly upon transmission
thereof, copies of any filings and registrations with, and
reports to, the Securities and Exchange Commission or any
successor thereto (the "SEC") by Holdings or any of its
Subsidiaries (other than amendments to any registration
statement (to the extent such registration statement, in the
form it becomes effective, is delivered to the Banks),
exhibits to any registration
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statement and any registration statements on Form S-8) and,
with reasonable promptness, such other information or
documents (financial or otherwise) as the Administrative Agent
on its own behalf or on behalf of the Required Banks may
reasonably request from time to time.
(i) NON-ORDINARY COURSE TRANSACTION. At any time after
the Restatement Effective Date that any Credit Party or any of
its respective Subsidiaries proposes to enter into any
transaction (or series of related transactions) with any
Affiliate of any Credit Party or any of their respective
Subsidiaries outside the ordinary course of business (other
than any transaction of a nature described in the proviso to
Section 8.07), the Borrower shall give the Compliance Agent
and the Banks (x) written notice of any such transaction at
least 7 Business Days (or such shorter period as the Required
Banks may agree) prior to the earlier of (I) the consummation
thereof or (II) the execution of a binding agreement therefor,
and (y) such other information related to the transaction as
the Compliance Agent or the Required Banks shall reasonably
request.
7.02 BOOKS, RECORDS AND INSPECTIONS. Each Credit Party
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries in conformity with GAAP
and all requirements of law shall be made of all dealings and transactions in
relation to its business and activities. Each Credit Party will, and will
cause each of its Subsidiaries to, permit, upon reasonable notice given by
the Administrative Agent to the Borrower on behalf of any Bank, officers and
designated representatives of any Bank (including without limitation,
appraisers) to visit and inspect any of the properties or assets of such
Credit Party and any of its Subsidiaries and to examine the books of account
of such Credit Party and any of its Subsidiaries and discuss the affairs,
finances and accounts of such Credit Party and of any of its Subsidiaries
with its and their officers and independent accountants, all at such
reasonable times and intervals and to such reasonable extent as such Bank may
desire.
7.03 INSURANCE. Each Credit Party will, and will cause
each of its Subsidiaries to, at all times be covered by or maintain in full
force and effect insurance in such amounts, covering such risks and
liabilities and with such deductibles or self-insured retentions as are in
accordance with normal industry practice and as is required by law.
7.04 PAYMENT OF TAXES. Each Credit Party will pay and
discharge, and will cause each of its Subsidiaries to pay and discharge, all
material taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits, or upon any properties belonging to it,
prior to the date on which material penalties attach thereto, and all
material lawful claims which, if unpaid, might become a Lien or charge upon
any properties of any Credit Party or any of its Subsidiaries, PROVIDED that
no Credit Party nor any of its Subsidiaries shall be required to pay any such
tax, assessment, charge, levy or claim (i) which is being contested in good
faith and by proper proceedings if it has maintained adequate reserves (in
the good faith judgment of the management of such Credit Party) with respect
thereto in accordance with GAAP or (ii) the nonpayment of which would not
have a material adverse effect on the financial condition or
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results of operations of Holdings and its Subsidiaries taken as a whole or of
the Borrower and its Subsidiaries taken as a whole.
7.05 CONSOLIDATED CORPORATE FRANCHISES. Each Credit
Party will do, and will cause each of its Subsidiaries to do, or cause to be
done, all things necessary to preserve and keep in full force and effect its
existence and its material rights, authority and franchises, unless the
failure to keep in full force and effect any such right, authority or
franchise would not have a material adverse effect on the financial condition
or results of operations of Holdings and its Subsidiaries taken as a whole or
of the Borrower and its Subsidiaries taken as a whole.
7.06 COMPLIANCE WITH STATUTES, ETC. Each Credit Party
will, and will cause each of its Subsidiaries to, comply in all material
respects with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all governmental bodies, domestic or
foreign, in respect of the conduct of its business and the ownership of its
property (including applicable statutes, regulations, orders and restrictions
relating to environmental standards and controls) other than those the
non-compliance with which would not have a material adverse effect on the
financial condition or results of operations of Holdings and its Subsidiaries
taken as a whole or the Borrower and its Subsidiaries taken as a whole.
7.07 ERISA. (a) As soon as practicable and in any
event within fifteen days after any Credit Party or any of its ERISA
Affiliates knows or has reason to know of the occurrence of any (i)
Termination Event in connection with any Pension Plan or Multiemployer Plan,
(ii) non-exempt "prohibited transaction" as described in Section 406 of ERISA
or Section 4975 of the Code, (iii) accumulated funding deficiency or
application to the Secretary of the Treasury for a waiver or modification of
the minimum funding standard (including any required installment payments) or
an extension of any amortization period under Section 412 of the Code, (iv)
institution pursuant to Section 515 of ERISA to collect a delinquent
contribution, or (v) material liability by any Credit Party or any Subsidiary
of any Credit Party pursuant to any employee welfare benefit plan (as defined
in Section 3(1) of ERISA) that provides benefits to retired employees or
other former employees (other than as required by Section 601 of ERISA) or
any employee pension benefit plan (as defined in Section 3(2) of ERISA) in
addition to the liability existing on the Restatement Effective Date pursuant
to any such welfare or pension plan or plans in connection with any Pension
Plan or Multiemployer Plan or any trust created thereunder, if as a result of
such event or transaction, considered together with other such events and
transactions occurring within the prior two years, the Credit Parties and
their ERISA Affiliates incur or could reasonably expect to incur liabilities
from all such events and transactions in excess of $5,000,000, such Credit
Party shall deliver to each of the Banks a certificate, signed by an
Authorized Officer of such Credit Party, specifying the nature thereof, what
action such Credit Party or such ERISA Affiliate has taken, is taking or
proposes to take with respect thereto, and any action taken or threatened by
the Internal Revenue Service, Department of Labor, PBGC, Pension Plan or
Multiemployer Plan, as applicable, to be taken with respect thereto (together
with copies of all relevant notices or other communications received from
such entity). For the purposes of this Section 7.07, a Credit Party shall be
deemed to have knowledge of all facts known by the "plan administrator" (as
defined in Section 3(16)(A)
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of ERISA) of any Pension Plan of which such Credit Party or any of its ERISA
Affiliates is the "plan sponsor" (as defined in Section 3(16)(B) of ERISA).
(b) To the extent reasonably requested by any Bank, as
soon as practicable and in any event within 30 days after the filing of a
Form 5500 series annual report by a Credit Party or any of its ERISA
Affiliates with the Internal Revenue Service with respect to each Pension
Plan, such Credit Party shall furnish to such Bank a copy of such Form 5500
series annual report and the Schedule B (Actuarial Information) thereto (and
shall make available for inspection by such Bank at reasonable times copies
of the full annual report with respect to each Pension Plan).
7.08 GOOD REPAIR. Each Credit Party will, and will
cause each of its Subsidiaries to, ensure that its properties and equipment
used or useful in its business are kept in good repair, working order and
condition, normal wear and tear excepted, and that from time to time there
are made in such properties and equipment all needful and proper repairs,
renewals, replacements, extensions, additions, betterments and improvements
thereto, to the extent and in the manner customary for companies in similar
businesses, except where the failure to keep such properties and equipment in
good repair, working order and condition or to make such repairs, renewals,
replacements, extensions, additions, betterments and improvements would not
have a material adverse effect on the financial condition or results of
operations of Holdings and its Subsidiaries taken as a whole or of the
Borrower and its Subsidiaries taken as a whole.
7.09 END OF FISCAL YEARS; FISCAL QUARTERS. Holdings and
the Borrower will, for financial reporting purposes, cause (i) each of its
and each of its Subsidiaries' fiscal years to end on December 31 of each year
and (ii) each of its and each of its Subsidiaries' fiscal quarters to end on
March 31, June 30, September 30 and December 31 of each year.
7.10 PERFORMANCE OF OBLIGATIONS. Each Credit Party
will, and will cause each of its Subsidiaries to, perform all of its
obligations under the terms of each mortgage, indenture, security agreement
and other debt instrument by which it is bound, except such non-performances
as would not have a material adverse effect on the financial condition or
results of operations of Holdings and its Subsidiaries taken as a whole or of
the Borrower and its Subsidiaries taken as a whole.
7.11 AIR CARRIER. The Borrower will at all times be a
Certificated Air Carrier.
SECTION 8. NEGATIVE COVENANTS. Each Credit Party hereby
covenants and agrees (in each case solely to the extent that any covenant or
agreement set forth in this Section 8 is expressly stated to be applicable to
such Credit Party and its Subsidiaries) that on the Restatement Effective
Date and thereafter, for so long as this Agreement is in effect and until the
Commitments and each Letter of Credit have terminated and the Loans and
Unpaid Drawings, together with interest, Fees and all other Obligations
incurred hereunder, are paid in full:
8.01 CHANGES IN BUSINESS. No Credit Party will make any
material change in the lines of business in which it was engaged on the
Restatement Effective Date.
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8.02 CONSOLIDATION, MERGER, ETC. No Credit Party will
wind up, liquidate or dissolve its affairs, or enter into any transaction of
merger or consolidation, sell or otherwise dispose of all or substantially
all of its property or assets or agree to do any of the foregoing at any
future time, except that so long as no Default or Event of Default exists, or
would result therefrom and PROVIDED that each Credit Party complies with
Section 8.03 in connection with such transaction to the extent such Section
is applicable, any Credit Party may merge or consolidate with, or sell or
otherwise dispose of all or substantially all of its assets to, any Person,
PROVIDED that (i) in the case of any merger or consolidation, the surviving
corporation shall be such Credit Party or (ii) the surviving corporation, if
not such Credit Party (or the successor corporation, in the case of a sale or
other disposition of all or substantially all of a Credit Party's assets),
(A) is a corporation organized and existing under the laws of the United
States of America or any State thereof, (B) is a Citizen of the United
States, (C) executes and delivers agreements assuming the obligations of such
Credit Party under this Agreement and the other Credit Documents to which
such Credit Party is a party, which assumption agreements and all related
actions and documentation shall be in form and substance reasonably
satisfactory to the Administrative Agent and (D) delivers to the
Administrative Agent a certificate signed by an Authorized Officer of such
Credit Party and an opinion of counsel to such Person satisfactory to the
Administrative Agent, each stating that such transaction and such assumption
agreement comply with this Section and that all conditions precedent herein
provided for relating to such transaction have been complied with.
8.03 SALE OF ASSETS. No Credit Party will, nor will any
Credit Party permit any of its Subsidiaries to, sell, lease or
otherwise dispose of any assets, except:
(a) Holdings or any of its Subsidiaries may, in the
ordinary course of business and consistent with past
practices, exchange, in any transaction or series of related
transactions, on a like value basis, (i) its real property for
real property owned by another Person, (ii) its airplane
engines for airplane engines owned by another Person, and
(iii) its airline routes, "airport gates" and/or "slots" for
airline routes, "airport gates" and/or "slots" owned by
another Person; PROVIDED, HOWEVER, that (x) in no event may
Pool Assets be exchanged and (y) to the extent Holdings or any
of its Subsidiaries receives any cash and/or cash equivalents
from any such property exchange permitted pursuant to this
clause (a), the amount of such cash and/or cash equivalents
shall be applied in accordance with clause (f) of this Section
8.03;
(b) Holdings or any of its Subsidiaries may, in the
ordinary course of business and consistent with past
practices, sell spare parts (which in no event shall include
aircraft or aircraft engines) and supplies (including, without
limitation, fuel) so long as each such sale is for an amount
at least equal to the fair market value thereof (as determined
by the Borrower);
(c) "Parting out" of an aircraft engine shall be
permitted by Holdings or any of its Subsidiaries in the
ordinary course of business and consistent with past practices;
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(d) Holdings or any of its Subsidiaries may, in a
transaction, sell any of its aircraft (other than Pool
Assets), which aircraft is then substantially
contemporaneously leased back to the respective seller,
PROVIDED that with respect to sale and leasebacks of aircraft
owned on December 15, 1995, the stated expiration of the lease
of such aircraft to Holdings or one of its Subsidiaries is
after the Term Loan Maturity Date;
(e) Holdings or any of its Subsidiaries may sell airline
tickets and related services in the ordinary course of
business;
(f) Holdings or any of its Subsidiaries may sell, lease
or otherwise dispose of any assets (other than Pool Assets),
PROVIDED that to the extent the gross proceeds received from
all such transactions occurring after December 15, 1995
(including cash or cash equivalent proceeds received pursuant
to Section 8.03(a)) exceeds $500,000,000, an amount equal to
50% of the Net Sale Proceeds from all transactions which occur
after such $500,000,000 threshold is exceeded (including 50%
of the Net Sale Proceeds from that transaction in which such
threshold is exceeded but only out of that portion of the
gross proceeds which exceeds such $500,000,000 threshold)
shall be applied to repay Loans and reduce Commitments in
accordance with Sections 3.03(e) and 4.02(d);
(g) Holdings or any of its Subsidiaries may, in the
ordinary course of business and consistent with industry
practice, (i) trade the use of any "slot" (whether or not such
"slot" is a Pool Asset) with another air carrier or (ii) lease
or license any such "slot" to another air carrier, in each
case on a temporary basis and PROVIDED that such transactions
do not involve the transfer of title to such "slots";
(h) the Borrower may lease its Boeing 747 aircraft
bearing Manufacturer's Serial No. 22245 pursuant to the Korean
Lease; and
(i) any Credit Party may dispose of its equity interests
in (x) GHI-CA Corporation, a Delaware corporation which owns all of the
outstanding shares of capital stock of Grand Holding, Inc., a Nevada
corporation, d/b/a Champion Air and/or (y) Express Air I owned by such Credit
Party on the Restatement Effective Date.
8.04 LIENS. None of the Credit Parties will, or will
permit any of their respective Subsidiaries to, create, incur,
assume or suffer to exist any Lien upon or with respect to the
Pool Assets or assign any right to receive income from the
Pool Assets, or file or permit the filing with respect to the
Pool Assets of any financing statement under the UCC or any
similar notice of Lien under any similar recording or notice
statute, except:
(a) inchoate Liens for taxes not yet due or Liens for
taxes being contested in good faith and by appropriate
proceedings for which adequate reserves (in the good faith
judgment of the management of the Borrower) have been
established in accordance with GAAP;
(b) Liens (other than any Lien imposed by ERISA) in
respect of the Pool Assets imposed by law which were incurred
in the ordinary course of business and which have
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not arisen to secure Indebtedness for borrowed money, such as
carriers', warehousemen's and mechanics' Liens, statutory
landlord's Liens, and other similar Liens and governmental
charges arising in the ordinary course of business, and which
either (x) do not in the aggregate materially detract from the
value of any Pool Asset or materially impair the use thereof
in the operation of the business of the Borrower or any of its
Subsidiaries or (y) are being contested in good faith by
appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or asset
subject to such Lien;
(c) Liens (where there has been no execution or levy and
no pledge or delivery of Pool Assets as security therefor)
arising out of judgments or awards against the Borrower or any
of its Subsidiaries with respect to which an appeal or
proceeding for review is being prosecuted in good faith and
which judgment or award shall be vacated, discharged,
satisfied or stayed or bonded pending appeal within 60 days
from the entry thereof;
(d) Liens in respect of any "slot", which is a Pool
Asset, constituting (i) trades with another air carrier or
(ii) leases or licenses to another air carrier, in each case
made by Holdings or any of its Subsidiaries on a temporary
basis, in the ordinary course of business and consistent with
industry practice, and PROVIDED that such transactions do not
involve the transfer of title to such "slots"; and
(e) the Korean Lease.
8.05 DISTRIBUTIONS, ETC. None of the Credit Parties
will, or will permit any of their respective Subsidiaries to,
authorize, declare or pay any dividends or return any capital
to, its stockholders, partners or members, or authorize or
make any other distribution, payment or delivery of property
or cash to its stockholders, partners or members as such or
redeem, retire, purchase or otherwise acquire, directly or
indirectly, for a consideration, any shares of any class of
its capital stock, any partnership interest or any limited
liability company interest (or any warrants for or options or
stock appreciation rights in respect of any of such shares,
partnership interests or limited liability company interests),
now or hereafter outstanding, or set aside any funds for any
of the foregoing purposes, and none of the Credit Parties will
permit any of their respective Subsidiaries to purchase or
otherwise acquire for consideration any shares of any class of
the capital stock, any partnership interest or any limited
liability company interests of any Credit Party or any such
Subsidiary, as the case may be (or any options or warrants or
stock appreciation rights issued by such Person with respect
to its capital stock, partnership interests or limited
liability company interests), now or hereafter outstanding
(all of the foregoing "Distributions"), except that:
(a) any Subsidiary of Holdings may make cash
Distributions to Holdings or any Subsidiary of Holdings;
(b) so long as no Default or Event of Default exists or
would result therefrom, Holdings or any of its Subsidiaries
shall be permitted to declare, make and pay cash
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Distributions to its respective shareholders in an amount not
to exceed the then Cumulative Net Income Amount less the sum
of (i) the amount of all such Distributions declared, made or
paid pursuant to this Section 8.05(b) prior to the date of
determination and on or after January 1, 1995 (other than
pursuant to Section 8.05(b)(ii)) plus (ii) the amount of all
such Distributions made by Holdings pursuant to Section
8.05(g); PROVIDED, HOWEVER, that to the extent any
non-Wholly-Owned Subsidiary of Holdings pays a cash
Distribution to its shareholders, Holdings or its respective
Subsidiary which owns the equity interest or interests in the
Subsidiary paying the cash Distribution receives at least its
proportionate share thereof (based upon its relative holdings
of equity interest in the Subsidiary paying such cash
Distribution and taking into account the relative preferences,
if any, of the various classes of equity interests in such
Subsidiary); it being understood that the amount of
Distributions declared, made or paid to Holdings or any of its
Subsidiaries shall not be counted for purposes of determining
whether the amount of Distributions have exceeded the
Cumulative Net Income Amount.;
(c) Holdings or any of its Subsidiaries may declare and
make stock dividends on its capital stock with the same or a
junior class of stock with respect to which such stock
dividend is being paid;
(d) Holdings or any of its Subsidiaries may repurchase
or redeem its capital stock solely through the issuance of
additional shares of its capital stock which is of the same or
a junior class of such capital stock being repurchased or
redeemed;
(e) so long as no Default or Event of Default exists or
would result therefrom, Holdings may declare, make and pay
Distributions in connection with any redemption of its Series
A Preferred Stock or Series B Preferred Stock;
(f) so long as no Default or Event of Default exists or
would result therefrom, Holdings or any of its Subsidiaries or
Affiliates may declare, make and pay Distributions consisting
of dividends on preferred securities of any Subsidiary or
Affiliate of Holdings issued in connection with the incurrence
of Indebtedness permitted by Section 8.06(l); and
(g) so long as no Default or Event of Default exists or
would result therefrom, on and after August 1, 1997, Holdings
may redeem, retire, repurchase or otherwise acquire up to
27,000,000 shares of common stock of Holdings owned by KLM for
an aggregate consideration not in excess of $1,300,000,000.
8.06 INDEBTEDNESS. None of the Credit Parties will, or
will permit any of their respective Subsidiaries to, contract, create, incur,
assume or suffer to exist any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness existing on the Restatement Effective
Date listed on Schedule V, including any refinancings or
renewals thereof, but only to the extent that such
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refinancing or renewal does not increase the principal amount
of such Indebtedness outstanding immediately prior to such
refinancing or renewal;
(c) intercompany Indebtedness among Holdings and its
Subsidiaries;
(d) additional unsecured Indebtedness of Holdings and
its Subsidiaries, PROVIDED that to the extent the gross
proceeds received from incurrences thereof after December 15,
1995 (other than any incurrence of any unsecured Indebtedness
of Holdings and its Subsidiaries the proceeds of which
Indebtedness is applied substantially contemporaneously to
refinance the outstanding principal amount of, premium, if
any, and accrued but unpaid interest on, any Indebtedness
incurred pursuant to this clause (d) or clause (e) below so
long as the principal amount of such Indebtedness being
incurred does not exceed the principal amount of Indebtedness
being refinanced immediately prior to such refinancing), plus
the amount of gross proceeds received from incurrences of
secured indebtedness pursuant to clause (e) below (such gross
proceeds being determined in accordance with clause (e)
below), exceed an amount equal to $600,000,000 (provided that
for purposes of determining whether the $600,000,000 threshold
has been exceeded Retired Unsecured Debt shall not be taken
into account), an amount equal to 50% of the Net Debt Proceeds
from all incurrences of unsecured Indebtedness after such
threshold is exceeded (including 50% of the Net Debt Proceeds
from the incurrence in which such threshold is exceeded but
only out of that portion of such gross proceeds which exceeds
such threshold at such time) shall be applied to repay Loans
and reduce Commitments in accordance with Sections 3.03(e) and
4.02(c);
(e) additional secured Indebtedness of Holdings and its
Subsidiaries, PROVIDED that to the extent the gross proceeds
received from incurrences thereof after December 15, 1995
(other than any incurrence of any secured Indebtedness of
Holdings and its Subsidiaries the proceeds of which
Indebtedness is applied substantially contemporaneously to
refinance the outstanding principal amount of, premium, if
any, and accrued but unpaid interest on, any Indebtedness
incurred pursuant to clause (d) above or this clause (e) so
long as the principal amount of such Indebtedness being
incurred does not exceed the principal amount of Indebtedness
being refinanced immediately prior to such refinancing), plus
the amount of gross proceeds received from incurrences of
unsecured indebtedness pursuant to clause (d) above in excess
of $300,000,000 (such gross proceeds being determined in
accordance with clause (d) above), exceed an amount equal to
$300,000,000 (provided that for purposes of determining
whether the $300,000,000 threshold has been exceeded Retired
Secured Debt shall not be taken into account), an amount equal
to 50% of the Net Debt Proceeds from all incurrences of
secured Indebtedness after such threshold is exceeded
(including 50% of the Net Debt Proceeds from the incurrence in
which such threshold is exceeded but only out of that portion
of such gross proceeds which exceeds such threshold at such
time) shall be applied to repay Loans and reduce Commitments
in accordance with Sections 3.03(e) and 4.02(c);
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(f) Indebtedness incurred in connection with the
financing of the Narita Hotel Property and assets related to
such hotel, PROVIDED that the Liens securing such Indebtedness
do not encumber any Pool Asset (or part thereof) and the
Indebtedness incurred in connection therewith does not exceed
the appraised value of the Narita Hotel Property;
(g) secured Indebtedness incurred to finance the
acquisition of hushkits heretofore or hereafter acquired by
the Borrower or any of its Subsidiaries or to refinance
indebtedness incurred to finance the acquisition of hushkits
and any other secured Indebtedness incurred to finance (or to
pre-fund the financing of) the purchase after December 15,
1995 of aircraft and other assets and any refinancing thereof,
PROVIDED that the Liens securing such Indebtedness do not
encumber any Pool Asset (or part thereof) and the Indebtedness
incurred in connection therewith does not exceed the purchase
price of the property being acquired or the principal amount
of the Indebtedness being refinanced;
(h) Indebtedness of Holdings and its Subsidiaries of the
type described in clause (v) of the definition of Indebtedness
and in clause (iii) thereof to the extent relating to
Indebtedness of the type described in clause (v) of the
definition thereof;
(i) Indebtedness constituting Contingent Obligations of
Holdings and its Subsidiaries with respect to corporations,
partnerships or joint ventures formed with other airlines to
conduct fueling, ticketing, terminal operations, aeronautical
radio communications, tariff publishing, industry trade
associations, local cartage and other similar airline
activities consistent with the Borrower's past business
practice, where the services provided are generally available
to all or substantially all of the airlines utilizing the
facility served;
(j) Indebtedness of Holdings and its Subsidiaries
incurred under and in respect of credit enhancement letters of
credit or other similar backstop liquidity facilities to the
extent any such letter of credit or backstop liquidity
facility, as the case may be, has not been drawn upon, which
letters of credit and liquidity facilities provide credit
support solely for the interest portion of Indebtedness
incurred by Holdings and its Subsidiaries and otherwise
permitted to be incurred pursuant to this Section 8.06;
(k) Indebtedness of Holdings and its Subsidiaries
consisting of Non-Facility Standby Letters of Credit and
reimbursement obligations with respect thereto, PROVIDED that
the aggregate amount of such Indebtedness shall not exceed
$35,000,000 at any one time;
(l) unsecured Indebtedness of Holdings and its
Subsidiaries incurred directly or indirectly to finance any
redemption pursuant to Section 8.05(e) and any refinancing
thereof, PROVIDED that (i) any such refinancing occurs
substantially contemporaneously with payment of the
Indebtedness being refinanced (or, if not substantially
contemporaneously with payment of the Indebtedness being
refinanced, on or prior to December 31, 1997) and (ii) no such
Indebtedness (other than a refinancing in accordance
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with clause (1)(i)) shall be incurred after December 31, 1997
to finance any portion of the redemption price paid in cash
with respect to any such redemption; and
(m) additional secured Indebtedness (whether or not
constituting purchase money Indebtedness) of Holdings and its
Subsidiaries incurred to finance or secured by Boeing 757
aircraft N544US, N545US, N546US, N547US, N548US and N549US so
long as the principal amount of such Indebtedness being
incurred does not exceed the fair market value of such
aircraft.
8.07 TRANSACTIONS WITH AFFILIATES. None of the Credit
Parties will, or will permit any of their respective Subsidiaries to, enter
into any transaction or series of related transactions with any Affiliate of
any Credit Party or any of their respective Subsidiaries, other than on terms
and conditions substantially as favorable to such Credit Party or such
Subsidiary as would reasonably be obtained by such Credit Party or such
Subsidiary at that time in a comparable arm's-length transaction with a
Person other than an Affiliate, PROVIDED that the foregoing restrictions
shall not apply to (a) customary fees paid to members of the Board of
Directors of Holdings and its Subsidiaries, (b) Distributions permitted by
Section 8.05 and (c) Indebtedness permitted by Section 8.06(l).
8.08 LIMITATION ON POOL ASSETS. (a) The Borrower will
not convey, sell, lease, transfer or otherwise dispose of (whether
voluntarily or involuntarily (it being understood that loss of property due
to theft, destruction, confiscation, prohibition on use or similar event
shall constitute a disposal for purposes of this covenant)), or remove or
substitute, any Pool Asset (or any engine included in the Pool Assets unless
such engine is replaced by another working engine or engines) or take any
action that could materially diminish the fair market value of the Pool
Assets taken as a whole, or agree to do any of the foregoing at any future
time, except that:
(i) so long as no Default or Event of Default exists,
the Borrower may replace a Pool Asset with another asset of
the Borrower (and Schedule VI shall be modified to reflect
such replacement), PROVIDED that (A) such replacement shall be
made on a dollar-for-dollar basis based upon (x) in the case
of the asset being removed from the Pool Assets, the Appraised
Value of such Pool Asset (as determined by the most recently
delivered Appraisal with respect to such Pool Asset), and (y)
in the case of the asset being added to the Pool Assets, the
Appraised Value of such asset (as determined by an Appraisal
performed at the time of such replacement), (B) after giving
effect to such replacement, the Appraised Value of the Stage
III Aircraft included in the Pool Assets which are from a
manufacturer other than Boeing or Airbus shall not exceed 60%
of the total Appraised Value of all Stage III Aircraft
included in the Pool Assets as a whole, (C) prior to effecting
the replacement, the Borrower shall have delivered a
certificate of an Authorized Officer of the Borrower
certifying compliance with this Section 8.08 and attaching to
such certificate all Appraisals not previously delivered to
the Banks and (D) the asset being added to the Pool Assets is
of a like kind as the asset being removed; it being understood
and agreed that (1) if the asset being removed is a Stage III
Aircraft, then only Stage III Aircraft may be substituted
therefor and (2) if the asset being removed
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is anything other than Stage III Aircraft, then only "slots",
Eligible Gates, aircraft and/or any other assets that are
reasonably satisfactory to the Agents may be substituted
therefor;
(ii) so long as no Default or Event of Default exists,
or would result therefrom, the Borrower may remove an asset
from the Pool Assets (and Schedule VI shall be modified to
reflect such removal), PROVIDED that (A) after giving effect
to such removal, the Appraised Value of the remaining Pool
Assets (as determined by an Appraisal of all Pool Assets
performed at the time of such removal) shall satisfy the
Coverage Tests, (B) after giving effect to such removal, the
Appraised Value of Stage III Aircraft included in the Pool
Assets which are from a manufacturer other than Boeing or
Airbus shall not exceed 60% of the total Appraised Value of
the Stage III Aircraft included in the Pool Assets as a whole
and (C) prior to effecting the removal, the Borrower shall
have delivered a certificate of an Authorized Officer of the
Borrower certifying that, and providing calculations
demonstrating that, after giving effect to such removal, the
Appraised Value of the Pool Assets shall satisfy the Coverage
Tests, and otherwise certifying compliance with this Section
8.08 and attaching to such certificate Appraisals of all Pool
Assets obtained in connection with such removal;
(iii) in the event (x) that an Appraisal furnished
pursuant to Section 7.01(g) discloses that one or both of the
Coverage Tests are not satisfied or (y) of an involuntary
disposal of any Pool Asset (or any engine included in the Pool
Assets unless such engine is replaced by another working
engine or engines) (whether by loss of property due to theft,
destruction, confiscation, prohibition or use, any similar
event or otherwise), if at the time of such disposal one or
both of the Coverage Tests are not then satisfied based upon
the most recent Appraisals of the Pool Assets (other than the
Pool Assets which are the subject of the involuntary
disposition) furnished pursuant to Section 7.01(g), the
Borrower shall within 30 days after the date of such Appraisal
or involuntary disposal, as the case may be, designate
additional assets as Pool Assets to the extent that, after
giving effect to such designation, the Appraised Value of the
Pool Assets, based on the most recently delivered Appraisals
with respect to assets already constituting Pool Assets and
based on an Appraisal performed at the time of such addition
with respect to assets being added to Pool Assets, shall
satisfy both Coverage Tests (and Schedule VI shall be modified
to reflect such addition), PROVIDED that (A) after giving
effect to such addition, the Appraised Value of Stage III
Aircraft included in the Pool Assets which are from a
manufacturer other than Boeing or Airbus shall not exceed 60%
of the total Appraised Value of the Stage III Aircraft
included in the Pool Assets as a whole, (B) at the time of
such addition, the Banks shall have received a certificate of
an Authorized Officer of the Borrower certifying that the
conditions set forth in this Section 8.08 shall have been
satisfied after giving effect to such addition and attaching
thereto any Appraisals not previously delivered to the Banks
and (C) the asset being added shall constitute an Eligible
Gate, a "slot" or an aircraft or any other asset that is
reasonably satisfactory to the Agents;
(iv) Holdings or any of its Subsidiaries may, in the
ordinary course of business and consistent with industry
practice, (i) trade the use of any "slot" that is a Pool Asset
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with another air carrier or (ii) lease or license any such
"slot" to another air carrier, in each case on a temporary
basis and PROVIDED that such transactions do not involve the
transfer of title to such "slots;" and
(v) the Borrower may lease its Boeing 747 aircraft bearing
Manufacturer's Serial No. 22245 pursuant to the Korean Lease.
(b) Except as set forth in Section 8.08(a)(iv), no
Credit Party shall, and no Credit Party shall permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of the
Borrower to create, incur, assume or suffer to exist any Lien on any Pool
Asset.
(c) The Pool Assets shall include, with respect to each
airframe included therein, a sufficient number of appropriate aircraft
engines to operate such airframe as an aircraft.
(d) After December 31, 1999, no aircraft other than
Stage III Aircraft (or higher) shall be included in the Pool Assets.
8.09 CONSOLIDATED INDEBTEDNESS TO CONSOLIDATED EBITDAR.
Holdings will not permit the ratio of Consolidated Indebtedness as of the
last day of any fiscal quarter to Consolidated EBITDAR for the period of four
consecutive fiscal quarters ended on the last day of such fiscal quarter, to
be greater than 6.0:1.0.
8.10 CONSOLIDATED EBITDAR TO CONSOLIDATED FIXED CHARGES.
Holdings will not permit the ratio of Consolidated EBITDAR to Consolidated
Fixed Charges for any period of four consecutive fiscal quarters ended on the
last day of any fiscal quarter, to be less than 1.5:1.0.
8.11 ERISA. None of the Credit Parties will, or will
permit any of their respective Subsidiaries or its ERISA Affiliates to:
(i) engage in any transaction in connection with which
Holdings or any of its ERISA Affiliates could be subject to
either a tax imposed by Section 4975(a) of the Code or the
corresponding civil penalty assessed pursuant to Section
502(i) of ERISA, which penalties and taxes for all such
transactions could be in an aggregate amount in excess of
$2,500,000;
(ii) permit to exist any accumulated funding deficiency,
for which a waiver has not been obtained from the Internal
Revenue Service, with respect to any Pension Plan in an
aggregate amount greater than $5,000,000; or
(iii) permit to exist any failure to make contributions
or any unfunded benefits liability which creates, or with the
passage of time would create, a statutory lien or requirement
to provide security under ERISA or the Code in favor of the
PBGC or any Pension Plan, Multiemployer Plan or other entity
in an aggregate amount in excess of $5,000,000.
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8.12 LAX TWO CORP. At any time when Holdings directly or
indirectly owns more than 50% of the outstanding Voting Stock of LAX Two,
Holdings will not permit LAX Two or any of its Subsidiaries to engage in any
business other than the business engaged in by LAX Two and its Subsidiaries
as of December 15, 1995 or to change LAX Two's status as a non-profit
corporation to a for-profit corporation.
SECTION 9. EVENTS OF DEFAULT. Upon the occurrence of any of the
following specified events (each, an "Event of Default"):
9.01 PAYMENTS. The Borrower shall (i) default in the payment when
due of any principal of any Loan or any Note or (ii) default, and such default
shall continue unremedied for five or more Business Days, in the payment when
due of any Unpaid Drawings or interest on any Loan or Note, or any Fees or any
other amounts owing hereunder or thereunder, PROVIDED that, in the case of this
clause (ii), the Administrative Agent shall have informed the Borrower of the
amount owing; or
9.02 REPRESENTATIONS, ETC. Any representation, warranty or statement
made by any Credit Party herein or in any other Credit Document or in any
certificate delivered pursuant hereto or thereto shall prove to be untrue in any
material respect on the date as of which made or deemed made, and such default
shall continue unremedied for a period of 30 days after written notice to the
Borrower by the Administrative Agent or the Required Banks; or
9.03 COVENANTS. Any Credit Party shall (i) default in any
material respect in the due performance or observance by it of any term,
covenant or agreement contained in Section 8.02, 8.03 or 8.05 or (ii) default
in the due performance or observance by it of any term, covenant or agreement
contained in Section 8.09 or 8.10 and such default shall continue unremedied
for a period of 15 days after written notice to the Borrower by the
Administrative Agent or the Required Banks or (iii) default in any material
respect in the due performance or observance by it of any other term,
covenant or agreement contained in this Agreement (other than as described in
Section 9.01, 9.03(i) or 9.03(ii)), and such default shall continue
unremedied for a period of 30 days after written notice to the Borrower by
the Administrative Agent or the Required Banks; or
9.04 DEFAULT UNDER OTHER AGREEMENTS. (a) Any Credit Party or any of
its Subsidiaries shall (i) default in any payment of any Indebtedness (other
than the Obligations) which default is in excess of $10,000,000 beyond the
period of grace (not to exceed 10 days), if any, provided in the instrument or
agreement under which such Indebtedness was created or (ii) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Obligations) if such Indebtedness is in excess of
$25,000,000 in the case of any one issue of Indebtedness or in excess of
$50,000,000 in the case of all such Indebtedness when aggregated with all Lease
claims described in clause (c)(ii) or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause, any such Indebtedness to
become due prior to its stated maturity; or (b) any Indebtedness (other than the
Obligations), individually in excess of $25,000,000, or in the
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aggregate in excess of $50,000,000 (when aggregated with all Lease claims
described in clause (c)(ii)), of any Credit Party or any of its Subsidiaries
shall be declared to be due and payable, or required to be prepaid other than
by a regularly scheduled required prepayment, prior to the stated maturity
thereof; or (c) any Credit Party or any of its Subsidiaries shall default in
the observance or performance of any agreement or condition relating to any
Lease if (i) the default is with respect to any payment in excess of
$10,000,000 beyond the period of grace (not to exceed 10 days), if any,
provided in the Lease or (ii) the effect of such default is to give the
lessor pursuant to such Lease a claim against any Credit Party (after
deducting from such claim the value of the property subject to such Lease) in
excess of $25,000,000 in the case of any one Lease or in excess of
$50,000,000 in the case of all Leases and all Indebtedness described in
clause (a)(ii) or (b) of this Section 9.04; or
9.05 BANKRUPTCY, ETC. The Borrower or any Guarantor (each a
"Designated Party") shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled "Bankruptcy", as now or hereafter in
effect, or any successor thereto (the "Bankruptcy Code"); or an involuntary case
is commenced against a Designated Party and the petition is not controverted
within 10 days after service of notice of such case on such Designated Party, or
is not dismissed within 60 days after commencement of the case; or a custodian
(as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of a Designated Party; or a Designated Party
commences any other proceeding under any reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or similar
law of any jurisdiction whether now or hereafter in effect relating to a
Designated Party; or there is commenced against a Designated Party any such
proceeding which remains undismissed for a period of 60 days; or a Designated
Party is adjudicated insolvent or bankrupt; or any order of relief or other
order approving any such case or proceeding is entered; or a Designated Party
suffers any appointment of any custodian or the like for it or any substantial
part of its property to continue undischarged or unstayed for a period of 60
days; or a Designated Party makes a general assignment for the benefit of
creditors; or any corporate action is taken by a Designated Party for the
purpose of effecting any of the foregoing; or
9.06 ERISA. (i) Any "reportable event" as described in Section
4043 of ERISA or the regulations thereunder (excluding those events for which
the requirement for notice has been waived by the PBGC), or any other event
or condition, which the Required Banks determine constitutes reasonable
grounds under Section 4042 of ERISA for the termination of any Pension Plan
by the PBGC or for the appointment by the appropriate United States District
Court of a trustee to administer or liquidate any Pension Plan shall have
occurred; or
(ii) A trustee shall be appointed by a United States District
Court to administer any Pension Plan; or
(iii) The PBGC shall institute proceedings to terminate any
Pension Plan or to appoint a trustee to administer any Pension Plan; or
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(iv) Holdings or any of its ERISA Affiliates shall become liable to
the PBGC or any other party under Section 4062, 4063 or 4064 of ERISA with
respect to any Pension Plan; or
(v) Holdings or any of its ERISA Affiliates shall become liable to
any Multiemployer Plan under Section 4201 ET SEQ. of ERISA; or
(vi) Any Pension Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such standard
or extension of any amortization period is sought or granted under Section 412
of the Code; or
(vii) A contribution required to be made to a Pension Plan or a
Multiemployer Plan has not been timely made; or
(viii) Any Credit Party or any Subsidiary of Holdings or any ERISA
Affiliate has incurred or is likely to incur a liability to or on account of a
Plan under Section 502(i), or 502(l) of ERISA or Section 4975 of the Code; or
(ix) Any Credit Party or any Subsidiary of any Credit Party has
incurred or is likely to incur liabilities pursuant to one or more employee
welfare benefit plans (as defined in Section 3(1) of ERISA) that provide
benefits to retired employees or other former employees (other than as required
by Section 601 of ERISA) or employee pension benefit plans (as defined in
Section 3(2) of ERISA) other than Pension Plans; if as of the date thereof or
any subsequent date, the sum of each Credit Party's and its ERISA Affiliates'
various liabilities (such liabilities to include, without limitation, any
liability to the PBGC or to any other party under Section 4062, 4063 or 4064 of
ERISA with respect to any Pension Plan, or to any Multiemployer Plan under
Section 4201 ET SEQ. of ERISA, and to be calculated after giving effect to the
tax consequences thereof) as a result of such events listed in subclauses (i)
through (ix) above exceeds $100,000,000; or
9.07 JUDGMENTS. One or more judgments or decrees shall be entered
against any Credit Party or any of its Subsidiaries involving a liability of
$25,000,000 or more in the case of any one such judgment or decree or
$50,000,000 or more in the aggregate for all such judgments and decrees (in each
case to the extent not paid or fully covered by insurance provided by a carrier
that has acknowledged coverage) and any such judgments or decrees shall not have
been vacated, discharged, satisfied or stayed or bonded pending appeal within 60
days from the entry thereof; or
9.08 GUARANTY. The Guaranty or any provision thereof shall cease to
be in full force or effect, or either Guarantor or any Person acting by or on
behalf of such Guarantor shall deny or disaffirm such Guarantor's obligations
under the Guaranty or either Guarantor shall default in any material respect in
the due performance or observance of any term, covenant or agreement on its part
to be performed or observed pursuant to the Guaranty; then, and in any such
event, and at any time thereafter, if any Event of Default shall then be
continuing, the Administrative Agent shall, upon the written request of the
Required Banks, by written notice to Holdings and the Borrower, take any or all
of the following actions, without prejudice to the
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rights of any Agent or any Bank to enforce its claims against the Borrower,
except as otherwise specifically provided for in this Agreement (PROVIDED
that if an Event of Default specified in Section 9.05 shall occur with
respect to the Borrower, the result which would occur upon the giving of
written notice by the Administrative Agent as specified in clauses (i) and
(ii) below shall occur automatically without the giving of any such notice):
(i) declare the Total Commitment terminated, whereupon the Commitments of
each Bank shall forthwith terminate immediately and all Fees theretofore
accrued shall forthwith become due and payable without any other notice of
any kind; (ii) declare the principal of and any accrued interest in respect
of all Loans and the Notes and all Obligations owing hereunder and thereunder
to be, whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Credit Party; (iii) terminate any Letter of Credit
which may be terminated in accordance with its terms; and (iv) direct the
Borrower to pay (and the Borrower agrees that upon receipt of such notice, or
upon the occurrence of an Event of Default specified in Section 9.05 with
respect to the Borrower, it will pay) to the Administrative Agent at the
Payment Office such additional amounts of cash, to be held as security for
the Borrower's reimbursement obligations for Drawings that may subsequently
occur thereunder, equal to the aggregate Stated Amount of all Letters of
Credit issued and then outstanding (after giving effect to any termination
pursuant to clause (iii)).
SECTION 10. DEFINITIONS AND ACCOUNTING TERMS.
10.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Absolute Rate" shall mean an interest rate (rounded to the nearest
.0001) expressed as a decimal.
"Absolute Rate Borrowing" shall mean a Competitive Bid Borrowing with
respect to which the Borrower has requested that the Banks offer to make
Competitive Bid Loans at Absolute Rates.
"Adjusted Certificate of Deposit Rate" shall mean, on any day, the
sum (rounded to the nearest 1/100 of 1%) of (1) the rate obtained by dividing
(x) the most recent weekly average dealer offering rate for negotiable
certificates of deposit with a three-month maturity in the secondary market
as published in the most recent Federal Reserve System publication entitled
"Select Interest Rates", published weekly on Form H.15 as of the date hereof,
or if such publication or a substitute containing the foregoing rate
information shall not be published by the Federal Reserve System for any
week, the weekly average offering rate determined by the Administrative Agent
on the basis of quotations for such certificates received by it from three
certificate of deposit dealers in New York of recognized standing or, if such
quotations are unavailable, then on the basis of other sources reasonably
selected by the Administrative Agent, by (y) a percentage equal to 100% minus
the stated maximum rate of all reserve requirements as specified in
Regulation D of the Board of Governors of the Federal Reserve System
applicable on such day to a three-month certificate of deposit of a member
bank of the Federal Reserve
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System in excess of $100,000 (including, without limitation, any marginal,
emergency, supplemental, special or other reserves), plus (2) the then daily
net annual assessment rate (expressed as a percentage) as estimated by the
Administrative Agent for determining the current annual assessment payable by
the Administrative Agent to the Federal Deposit Insurance Corporation for
insuring three-month certificates of deposit.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person; PROVIDED, HOWEVER, that for purposes of
Section 8.07, an Affiliate of Holdings shall, in any event, include any Person
that directly or indirectly owns more than 5% of the Voting Stock of Holdings
and any officer or director of Holdings or any such Person. A Person shall be
deemed to control another Person if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such other Person, whether through the ownership of Voting Stock, by
contract or otherwise.
"Agents" shall mean each of the Compliance Agent, the Syndication
Agent, the Documentation Agent, the Administrative Agent, National Westminster
Bank plc and First Bank National Association.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented or amended from time to time.
"Applicable Eurodollar Margin" and "Applicable Commitment Fee
Percentage" shall mean, as of any date of determination, the percentage set
forth below under the appropriate heading corresponding to the senior unsecured
debt rating of the Borrower (without any credit enhancements of any type and
based upon an actual issuance of senior unsecured debt and not upon an "implied"
rating; PROVIDED, HOWEVER, to the extent that the Borrower does not have any
issuance of senior unsecured debt, then if there is an "implied" senior
unsecured debt rating of the Borrower which is publicly published by the
applicable Rating Agency then such "implied" rating shall be used for all
purposes of the table set forth below until such time as the Borrower has an
actual issuance of senior unsecured debt; PROVIDED FURTHER, that to the extent
that the Borrower does not have any issuance of senior unsecured debt or such an
"implied" senior unsecured debt rating then the Borrower may obtain a senior
unsecured debt rating and such rating shall be used for all purposes of the
table set forth below until such time as the Borrower has an actual issuance of
senior unsecured debt or an "implied" senior unsecured debt rating as heretofore
described), as rated by S&P (the "S&P Rating") and Xxxxx'x (the "Xxxxx'x
Rating", each of the S&P Rating and the Xxxxx'x Rating referred to herein as a
"Rating"):
---------------------------------------------------------------------------
APPLICABLE COMMITMENT FEE
PERCENTAGE
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------------------------------------------------------------------------------------------
SENIOR UNSECURED
DEBT RATING OF THE APPLICABLE BASIC SUPPLEMENTAL
BORROWER EURODOLLAR REVOLVING REVOLVING
LEVEL (S&P/XXXXX'X) MARGIN LOANS LOANS
------------------------------------------------------------------------------------------
1 A- or higher or A3 or 0.300% 0.1000% 0.1000%
higher
------------------------------------------------------------------------------------------
2 BBB+ or Baa1 0.375% 0.1250% 0.1250%
------------------------------------------------------------------------------------------
3 BBB or Baa2 0.500% 0.1500% 0.1500%
------------------------------------------------------------------------------------------
4 BBB- or Baa3 0.625% 0.1875% 0.1600%
------------------------------------------------------------------------------------------
5 BB+ or Ba1 0.750% 0.2000% 0.1700%
------------------------------------------------------------------------------------------
6 BB or Ba2 1.000% 0.2250% 0.1875%
------------------------------------------------------------------------------------------
7 BB- or Ba3 1.125% 0.3250% 0.2850%
------------------------------------------------------------------------------------------
8 Lower than BB- or 1.500% 0.5000% 0.4600%
lower than Ba3
------------------------------------------------------------------------------------------
The Administrative Agent shall determine the Applicable Eurodollar
Margin and the Applicable Commitment Fee Percentages from time to time in
accordance with the above table and notify the Borrower and the Banks of such
determination from time to time. In the event the S&P Rating and the Xxxxx'x
Rating correspond to different levels on the above table, the higher Rating
shall be used to determine the Applicable Eurodollar Margin or Applicable
Commitment Fee Percentages, as the case may be.
In the event either Rating Agency ceases to rate the Borrower's
senior unsecured debt for any reason, then the rating of NWA by such Rating
Agency with respect to the senior unsecured debt of NWA (without any credit
enhancement and based upon an actual issuance of senior unsecured debt and
not upon an "implied" rating; PROVIDED, HOWEVER, to the extent that NWA does
not have any issuance of senior unsecured debt, then if there is an "implied"
senior unsecured debt rating of NWA which is publicly published by the
applicable Rating Agency then such "implied" rating shall be used for all
purposes of the table set forth above until such time as NWA has an actual
issuance of senior unsecured debt, PROVIDED FURTHER, that to the extent NWA
does not have any issuance of senior unsecured debt or such an "implied"
senior unsecured debt rating then NWA may obtain a senior unsecured debt
rating and such rating shall be used for all purposes of the table set forth
above until such time as NWA has an actual issuance of senior unsecured debt
or an "implied" senior unsecured debt rating as heretofore described)
upgraded by one rating level shall be used as a substitute for the Rating of
such Rating Agency for all purposes of the above table. In the event that
either Rating Agency ceases to rate both the Borrower's senior unsecured debt
and NWA's senior unsecured debt for any reason, then the Rating of the other
Rating Agency of the senior unsecured debt of the Borrower (or, if
applicable, the senior unsecured debt of NWA (upgraded as aforesaid)) shall
be used for purposes of determining the Applicable Eurodollar Margin or the
Applicable Commitment Fee Percentages, as the case may be. If both Rating
Agencies cease to rate the senior unsecured debt of the Borrower and the
senior unsecured debt of NWA for any reason, then the level 8 rating set
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forth above shall be applicable for purposes of determining the Applicable
Eurodollar Margin or Applicable Commitment Fee Percentages, as the case may be.
Any necessary adjustment in the Applicable Eurodollar Margin or either
Applicable Commitment Fee Percentage, as the case may be, pursuant to the terms
hereof shall become effective immediately upon any change in a Rating.
"Appraisal" shall mean an appraisal, dated the date of delivery
thereof to the Banks pursuant to the terms of this Agreement, by one or more
independent appraisal firms satisfactory, at the time of such Appraisal, to the
Borrower and the Compliance Agent setting forth the fair market value, as
determined in accordance with the definition of "fair market value" promulgated
by the International Society of Transport Aircraft Trading, as of the date of
such appraisal of each Pool Asset or a proposed Pool Asset, as the case may be.
"Appraised Value" shall mean as of any date of determination the
aggregate fair market value as of such date of each Pool Asset or proposed Pool
Asset, as the case may be, as provided in the most recently delivered Appraisal.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement in the form of Exhibit H (appropriately completed).
"Authorized Officer" of any Credit Party shall mean the Chief
Executive Officer, the Chief Financial Officer or any Vice President and above
who reports directly or indirectly to the Chief Financial Officer.
"Bank" shall have the meaning provided in the first paragraph of this
Agreement.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" at any time shall mean the higher of (i) 1/2 of 1% in
excess of the Adjusted Certificate of Deposit Rate and (ii) the Prime Lending
Rate.
"Base Rate Loan" shall mean each Loan designated or deemed designated
as such by the Borrower at the time of the incurrence thereof or conversion
thereto.
"Basic Revolving Loan" shall have the meaning provided in
Section 1.01(b).
"Basic Revolving Loan Commitment" shall mean, for each Bank, the
amount set forth opposite such Bank's name in Schedule I hereto directly below
the column entitled "Basic Revolving Loan Commitment", as the same may be (x)
increased pursuant to Section 1.01(c) or (y) reduced from time to time pursuant
to Sections 3.02, 3.03 and/or 9 or (z) adjusted from time to time as a result of
assignments to or from such Bank pursuant to Section 1.13 or 12.04(b).
"Bidder Bank" shall mean each Bank that has notified in writing (and
has not withdrawn such notice) the Administrative Agent that it desires to
participate generally in the bidding arrangements relating to Competitive Bid
Borrowings.
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"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrowing" shall mean (i) the borrowing of one Type of Loan of a
single Tranche from all the Banks having Commitments of the respective Tranche
on a given date (or resulting from a conversion or conversions on such date or
resulting from a selection of an Interest Period or Interest Periods on such
date) having in the case of Eurodollar Loans the same Interest Period, PROVIDED
that Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered
part of the related Borrowing of Eurodollar Loans, (ii) the borrowing of Loans
from Bidder Banks on a given date pursuant to one Competitive Bid Borrowing or
(iii) the conversion of Supplemental Revolving Loans to Supplemental Term Loans
on a given date.
"BRL Commitment Fee" shall have the meaning provided in Section
3.01(a)(i).
"BRL Competitive Bid Loan" shall mean a Competitive Bid Loan which is
designated as such by the Borrower in the Notice of Competitive Bid Borrowing
related thereto.
"BRL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Basic Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Basic Revolving Loan Commitment at such time, PROVIDED that if the BRL
Percentage of any Bank is to be determined after the Total Basic Revolving Loan
Commitment has been terminated, then the BRL Percentages of the Banks shall be
determined immediately prior (and without giving effect) to such termination.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall be
in Minneapolis, Minnesota or New York City a legal holiday or a day on which
banking institutions are authorized or required by law or other government
action to close and (ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, Eurodollar Loans,
any day which is a Business Day described in clause (i) above and which is also
a day for trading by and between banks in the interbank Eurodollar market.
"Capitalized Lease Obligations" of any Person shall mean all rental
obligations which, under GAAP, are or will be required to be capitalized on the
books of such Person, in each case taken at the amount thereof accounted for as
indebtedness in accordance with GAAP.
"Certificated Air Carrier" shall mean a Citizen of the United States
holding a carrier operating certificate issued by the Secretary of
Transportation pursuant to Chapter 447 of Title 49, United States Code, for
aircraft capable of carrying ten or more individuals or 6,000 pounds or more of
cargo.
"Citizen of the United States" shall have the meaning provided in
Section 40102(a)(15) of Title 49 of the United States Code.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and the rulings issued
thereunder. Section references to
-59-
the Code are to the Code, as in effect at the date of this Agreement, and to
any subsequent provision of the Code, amendatory thereof, supplemental
thereto or substituted therefor.
"Commitment" shall mean any of the commitments of any Bank, I.E.,
whether a Term Loan Commitment, Basic Revolving Loan Commitment or Supplemental
Revolving Loan Commitment.
"Commitment Fee" shall have the meaning provided in Section
3.01(a)(ii).
"Commitment Increase" shall have the meaning provided in Section
1.01(c).
"Commitment Increase Amount" shall have the meaning provided in
Section 1.01(c).
"Competitive Bid Borrowing" shall mean a Borrowing of Competitive Bid
Loans pursuant to Section 1.03A.
"Competitive Bid Loan" shall have the meaning provided in Section
1.01(d).
"Compliance Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Consolidated EBITDAR" shall mean, for any period, the consolidated
operating income of Holdings and its Subsidiaries for such period plus (i)
consolidated aircraft operating rental expenses of Holdings and its Subsidiaries
for such period plus (ii) amortization, depreciation and non-cash stock
compensation expense (to the extent in excess of a $28 per share (adjusted for
any stock split or similar transaction) price with respect to such non-cash
stock compensation expense) that were deducted in arriving at the amount of such
consolidated operating income for such period plus (iii) interest income of
Holdings and its Subsidiaries during such period, all as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Fixed Charges" shall mean, for any period, the total
consolidated interest expense of Holdings and its Subsidiaries for such period
(calculated without regard to any limitations on the payment thereof, but
excluding all interest expense in connection with any Distribution permitted by
Section 8.05(f) and all interest expense in connection with Indebtedness
permitted by Section 8.06(l) except any such Indebtedness incurred by the
Borrower or any of its Subsidiaries which is not subordinated to the
Obligations) plus, without duplication, that portion of Capitalized Lease
Obligations of Holdings and its Subsidiaries representing the interest factor
for such period, plus the total consolidated aircraft operating rental expenses
of Holdings and its Subsidiaries for such period.
"Consolidated Indebtedness" shall mean, at any time, the sum of (i)
the aggregate outstanding principal amount of all Indebtedness (including,
without limitation, the current portion thereof, but excluding (1) all
Indebtedness of the type set forth in clause (v) of the definition of
Indebtedness, (2) all Indebtedness of the type set forth in clause (iii) of the
definition of Indebtedness to the extent relating to Indebtedness of the type
described in clause
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(v) of the definition thereof, (3) all Identified Indebtedness, and (4) all
Indebtedness permitted by Section 8.06(l) except any such Indebtedness
incurred by the Borrower or any of its Subsidiaries which is not subordinated
to the Obligations) and the principal component of Capitalized Lease
Obligations of Holdings and its Subsidiaries plus (ii) the capitalized
aircraft operating lease obligations of Holdings and its Subsidiaries
(calculated at any time of determination as the product of (x) seven and (y)
the aircraft operating rental expense of Holdings and its Subsidiaries for
the four fiscal quarters immediately preceding the date of determination).
"Consolidated Net Income" shall mean, for any period, net after tax
income of Holdings and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person
(other than Holdings or any of its Subsidiaries) (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (x) for the purchase or payment of any
such primary obligation or (y) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the holder of such primary obligation
against loss in respect thereof; PROVIDED, HOWEVER, that the term Contingent
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made (or, if less, the maximum amount of such primary obligation for which
such Person may be liable pursuant to the terms of the instrument evidencing
such Contingent Obligation) or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Continuing Bank" shall mean each Existing Bank with a Commitment
under this Agreement (immediately upon giving effect to the Restatement
Effective Date).
"Conversion Date" shall have the meaning provided in Section 1.14.
"Coverage Tests" shall have the meaning provided in Section 5A.11(b).
"Credit Documents" shall mean this Agreement (including the Guaranty
herein) and the Notes.
"Credit Event" shall mean the making of any Loan or the issuance of
any Letter of Credit.
"Credit Party" shall mean Holdings, NWA and the Borrower.
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"Cumulative Net Income Amount" shall mean on any date of
determination, an amount equal to 50% of Consolidated Net Income (determined on
a cumulative basis) for the period commencing on January 1, 1995 and ending on
the date of determination.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Designated Party" shall have the meaning provided in Section 9.05.
"Distribution" shall have the meaning provided in Section 8.05.
"Documentation Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Documentation Agent's Office" shall mean the office of the
Documentation Agent located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Global Aviation Risk Manager, or such other office as the
Documentation Agent may hereafter designate in writing as such to the other
parties hereto.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"Drawing" shall have the meaning provided in Section 2.04(b).
"Eligible Gate" shall mean any airport gate of the Borrower upon which
at the time of becoming a Pool Asset, the Banks could receive a first priority
perfected security interest therein without the consent of any third Person
(other than a consent which has been obtained on or prior to the time such
airport gate becomes a Pool Asset).
"Eligible Transferee" shall mean and include a commercial bank,
financial institution or other "accredited investor" (as defined in Regulation D
of the Securities Act) other than an airline, a commercial air carrier, an air
freight forwarder, an entity engaged in the business of parcel transport by air
or other similar Person or a corporation or other entity controlling, controlled
by or under common control with such an airline, commercial air carrier, air
freight forwarder, entity engaged in the business of parcel transport by air or
other similar Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the date of this Agreement, and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with Holdings or any of its Subsidiaries would be
deemed to be a "single employer" within the meaning of Section 414(b), (c),
(m) or (o) of the Code.
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"Eurodollar Loan" shall mean each Loan designated as such by the
Borrower at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean, at the option of the Borrower, (a) (i)
the rate determined by the Administrative Agent to be the arithmetic average of
the offered quotation to first-class banks in the interbank Eurodollar market by
each Reference Bank for Dollar deposits of amounts in immediately available
funds comparable to the outstanding principal amount of the Eurodollar Loan of
such Reference Bank with maturities comparable to the Interest Period applicable
to such Eurodollar Loan commencing two Business Days thereafter as of 10:00 A.M.
(New York time) on the date which is two Business Days prior to the commencement
of such Interest Period, divided (and rounded off to the nearest 1/16 of 1%) by
(ii) a percentage equal to 100% minus the then stated maximum rate of all
reserve requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves required by applicable law) applicable
to any member bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D of the Board of Governors of the Federal
Reserve System (or any successor category of liabilities under Regulation D),
PROVIDED that if one or more of the Reference Banks fails to provide the
Administrative Agent with its aforesaid rate, then the Eurodollar Rate shall be
determined based on the rate or rates provided to the Administrative Agent by
the other Reference Bank or Banks, or (b) the arithmetic average of the offered
rates for deposits in Dollars for the applicable Interest Period (or the period
closest to such applicable Interest Period) which appear on the Reuters Screen
LIBO Page as of 10:00 A.M. (New York time)) on the date which is two Business
Days prior to the commencement of such Interest Period.
"Event of Default" shall have the meaning provided in Section 9.
"Existing Banks" shall mean each Person that was a "Bank" under, and
as defined in, the Existing Credit Agreement.
"Existing Credit Agreement" shall have the meaning provided in the
recitals to this Agreement.
"Existing Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Existing Loans" shall mean, collectively, the Existing Term Loans
and Existing Revolving Loans.
"Existing Revolving Loan Commitment" shall mean a or any "Revolving
Loan Commitment" under, and as defined in, the Existing Credit Agreement.
"Existing Revolving Loans" shall mean the "Revolving Loans" under,
and as defined in, the Existing Credit Agreement.
"Existing Term Loans" shall mean the "Term Loans" under, and as
defined in, the Existing Credit Agreement.
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"Express Air I" shall mean Express Airlines I, Inc., a
Georgia corporation, and Phoenix Airline Services, Inc., a Georgia
corporation.
"Extending Bank" shall have the meaning provided in
Section 1.14.
"Facing Fee" shall have the meaning provided in Section
3.01(c).
"Federal Funds Rate" shall mean for any period, a
fluctuating interest rate equal for each day during such period to the
weighted average of the rates on overnight Federal Funds transactions with
members of the Federal Reserve System arranged by Federal Funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by the
Administrative Agent from three Federal Funds brokers of recognized standing
selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or
referred to in Section 3.01.
"Financial Outlook" shall have the meaning provided in
Section 6.05(b).
"First Response Date" shall have the meaning provided in
Section 1.14.
"GAAP" shall have the meaning provided in Section
12.07(a).
"Guarantor" shall mean each of Holdings and NWA.
"Guaranty" shall mean the guaranty of Holdings and NWA
pursuant to Section 13.
"Hedging Obligations" shall mean, as to any Person, all
obligations and liabilities of such Person under any Interest Rate Protection
Agreement, which are payable upon the termination of such agreement.
"Holdings" shall have the meaning provided in the first
paragraph of this Agreement.
"Identified Indebtedness" shall mean and include (i)
Contingent Obligations incurred pursuant to Section 8.06(i), (ii) Contingent
Obligations of Holdings in respect of the Xxxxx County Special Facilities
Revenue Bonds; PROVIDED that the maximum aggregate liability of Holdings and
its Subsidiaries in respect of all such Contingent Obligations shall not
exceed $86,000,000 plus interest thereon, (iii) Contingent Obligations of
NATC for the benefit of a third party in respect of its space lease in Grand
Forks, North Dakota, PROVIDED that the maximum aggregate liability of NATC in
respect of all such Contingent Obligations shall not exceed $2,500,000, (iv)
Indebtedness of the type described in clause (iii) of the definition thereof
in connection with the Borrower's pledge of its receivables generated through
the Scheduled Airline Traffic Office to secure Indebtedness incurred by the
Scheduled Airline Traffic Office, the proceeds of which are advanced to the
Borrower on a non-recourse basis (other than such
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pledged receivables) and (v) Indebtedness incurred pursuant to Section
8.06(j) but only to the extent that such credit enhancement letters of credit
or backstop liquidity facilities referred to therein are not drawn upon.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price
of property or services but excluding trade accounts payable and accrued
expenses incurred in the ordinary course of business, (ii) the maximum amount
available to be drawn under all letters of credit issued for the account of
such Person and all unpaid drawings in respect of such letters of credit,
(iii) all Indebtedness of the types described in clause (i), (ii), (iv), (v),
(vi) or (vii) of this definition secured by any Lien on any property owned by
such Person, whether or not such Indebtedness has been assumed by such Person
(to the extent of the value of the respective property), (iv) Capitalized
Lease Obligations, (v) all obligations of such person to pay a specified
purchase price for goods or services, whether or not delivered or accepted,
I.E., take-or-pay and similar obligations, (vi) all Contingent Obligations of
such Person and (vii) all Hedging Obligations under any Interest Rate
Protection Agreement; PROVIDED, HOWEVER, that neither (a) the Japanese Land
Financing Obligations nor (b) any obligations of Holdings to repurchase
shares of its common stock owned by KLM to the extent such repurchase would
be permitted in accordance with Section 8.05(g) shall constitute Indebtedness.
"Interest Determination Date" shall mean, with respect to
any Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in
Section 1.09.
"Interest Rate Protection Agreement" shall mean any
interest rate swap agreement, interest rate cap agreement, interest collar
agreement, interest rate hedging agreement or other similar agreement or
arrangement.
"Issuing Bank" shall mean the Administrative Agent and/or
any Bank which at the request of the Borrower and with the consent of the
Administrative Agent agrees, in such Bank's sole discretion, to become an
Issuing Bank for the purposes of issuing Letters of Credit pursuant to
Section 2.
"Japanese Land Financing Obligations" shall mean all
obligations of the Borrower under that certain Second Amended and Restated
Loan Agreement, dated as of September 30, 1995, between the Borrower and
Konan City Planning Co., Ltd., but only to the extent that such obligations
are non-recourse with respect to all Credit Parties and their Subsidiaries
and are secured solely by the following real property: (i) the Azabu
property, (ii) the Xxxxxx-xxx property and (iii) the Sarugaku-cho property.
"KLM" shall mean Koninklijke Luchtvaart Maatschappij
N.V., a Netherlands corporation.
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"Korean Lease" shall mean that certain Aircraft Lease
Agreement, dated July 8, 1994, between Singapore Airlines Limited, as lessor,
and Korean Air Lines Co., Ltd, as lessee, as modified pursuant to that
certain Aircraft Lease Novation Agreement among Singapore Airlines Limited,
the Borrower and Korean Air Lines Co., Ltd.
"Last Response Date" shall have the meaning provided in
Section 1.14.
"LAX Two" shall mean LAX TWO CORP., a non-profit
California mutual benefit corporation.
"L/C Supportable Obligations" shall mean and include
obligations of Holdings or any of its Subsidiaries incurred in the ordinary
course of business and such other obligations of Holdings or any of its
Subsidiaries as are reasonably acceptable to the respective Issuing Bank and
otherwise permitted to exist pursuant to the terms of this Agreement.
"Lease" shall mean any operating lease entered into by
any Credit Party or any of its Subsidiaries as lessee thereunder.
"Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time,
the sum of (i) the aggregate Stated Amount of all outstanding Letters of
Credit and (ii) the amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning
provided in Section 2.02.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, security deposit arrangement, encumbrance, lien (statutory or
other) or other security agreement or lien of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC
or any other similar recording or notice statute, and any capital lease
having substantially the same economic effect as any of the foregoing).
"Loan" shall mean each Term Loan, each Basic Revolving
Loan, each Supplemental Revolving Loan, each Supplemental Term Loan and each
Competitive Bid Loan.
"Margin Stock" shall have the meaning provided in
Regulation U of the Board of Governors of the Federal Reserve System.
"Maturity Date" with respect to any Tranche shall mean
either the Term Loan Maturity Date (in the case of Term Loans), the Revolving
Loan Maturity Date (in the case of Basic Revolving Loans), the SRL Commitment
Expiration Date (in the case of Supplemental Revolving Loans) or the
Supplemental Term Loan Maturity Date (in the case of Supplemental Term Loans).
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"Moody's" shall mean Xxxxx'x Investors Service, Inc., or
any successor corporation thereto.
"Xxxxx'x Rating" shall have the meaning provided in the
definition of "Applicable Eurodollar Margin".
"Multiemployer Plan" means a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA with respect to which the Borrower or
any of its ERISA Affiliates is an "employer" as defined in Section 3(5) of
ERISA.
"Narita Hotel Property" shall mean the Narita
International Hotel and the "Flight Kitchen" located on the property on which
such hotel is located.
"NATC" shall mean Northwest Aerospace Training
Corporation, a Delaware corporation.
"Net Debt Proceeds" shall mean for any incurrence of
Indebtedness, the gross proceeds of such incurrence, net of (i) underwriting
discounts and commissions and other fees and costs associated therewith, (ii)
any taxes (including income taxes) currently paid or payable in the year of
incurrence or the following year as a result of such incurrence and (iii) in
the case of the incurrence of any such Indebtedness in connection with the
substantially contemporaneous refinancing of other Indebtedness, the
aggregate amount of the outstanding principal amount of, premium, if any, and
accrued but unpaid interest on, such other Indebtedness being refinanced with
the proceeds of such Indebtedness.
"Net Sale Proceeds" shall mean for any sale, lease,
transfer or other disposition of assets, the face amount of any promissory
note, receivable or other deferred payment and the gross cash proceeds plus
the fair market value of any other property received by Holdings or any of
its Subsidiaries from such sale, lease, transfer or other disposition, net of
reasonable transaction costs, the payment of the outstanding principal amount
of, premium, if any, and interest on any Indebtedness (other than the
Obligations) securing the assets being sold and required to be repaid as a
result thereof and the estimated marginal increase in income taxes which will
be payable by the Holdings' consolidated group with respect to the fiscal
year in which the sale occurs as a result of such sale.
"New Banks" shall mean each of the Persons listed on
Schedule I which is designated as a New Bank.
"Non-Continuing Bank" shall have the meaning provided in
Section 12.18.
"Non-Extending Banks" shall have the meaning provided in
Section 1.14.
"Non-Facility Standby Letters of Credit" shall mean each
standby letter of credit (other than Letters of Credit) issued for the
account of any Credit Party or any of its respective Subsidiaries in the
ordinary course of business.
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"Non-Prepayment Competitive Bid Offer" shall have the
meaning provided in Section 1.03A(c)(ii).
"Note" shall mean each Term Note, each Revolving Note,
each Supplemental Revolving Note and each Supplemental Term Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
"Notice of Commitment Increase" shall have the meaning
provided in Section 1.01(c).
"Notice of Competitive Bid Borrowing" shall have the
meaning provided in Section 1.03A(a).
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the
Administrative Agent located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Deal Administrator, Facsimile: (000) 000-0000 or (000) 000-0000,
or such other office as the Administrative Agent may hereafter designate in
writing as such to the other parties hereto.
"NWA" shall have the meaning provided in the first
paragraph of this Agreement.
"Obligations" shall mean all amounts owing to any Agent
or any Bank pursuant to the terms of this Agreement or any other Credit
Document.
"Participant" shall have the meaning provided in Section
2.03(a).
"Payment Office" shall mean the office of the
Administrative Agent located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Deal Administrator, Facsimile: (000) 000-0000 or (000) 000-0000,
or such other office as the Administrative Agent may hereafter designate in
writing as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation established pursuant to Section 4002 of ERISA, or any successor
thereto.
"Pension Plan" means any plan (other than a Multiemployer
Plan) described in Section 4021(a) of ERISA, and not excluded pursuant to
Section 4021(b) of ERISA, with respect to which any Credit Party or any of
its ERISA Affiliates is a "contributing sponsor" as defined in Section
4001(a)(13) of ERISA and each such plan for the five year period immediately
following the last date on which the Borrower or any of its ERISA Affiliates
contributed or had an obligation to contribute to such plan.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, association, limited liability company, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
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"Pool Assets" shall mean assets of the Borrower listed on
Schedule VI (which Schedule shall be prepared by the Borrower and be
reasonably satisfactory to the Compliance Agent), to the extent modified
pursuant to Section 8.08, and together with all the engines necessary to
comply with Section 8.08(c).
"Prepayment Competitive Bid Offer" shall have the meaning
set forth in Section 1.03A(c)(ii).
"Prime Lending Rate" shall mean the rate which the
Administrative Agent announces from time to time as its prime lending rate,
the Prime Lending Rate to change when and as such prime lending rate changes.
The Prime Lending Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
"Quarterly Payment Date" shall mean the fifteenth day of
each March, June, September and December occurring after the Restatement
Effective Date.
"Rating" shall have the meaning provided in the
definition of "Applicable Eurodollar Margin".
"Rating Agency" shall mean each of S&P and Moody's.
"Reference Banks" shall mean three Banks that are Agents
(or The Chase Manhattan Bank) and are acceptable to the Borrower, PROVIDED
that one such Bank shall be the Administrative Agent.
"Register" shall have the meaning set forth in Section
12.17.
"Replaced Bank" shall have the meaning provided in
Section 1.13.
"Replacement Bank" shall have the meaning provided in
Section 1.13.
"Reply Date" shall have the meaning provided in Section
1.03A(b).
"Required Banks" shall mean Banks, the sum of whose
outstanding Term Loans, Basic Revolving Loan Commitments (or after the
termination thereof, outstanding Basic Revolving Loans, BRL Competitive Bid
Loans and BRL Percentage of Letter of Credit Outstandings), Supplemental
Revolving Loan Commitments (or after the termination thereof, outstanding
Supplemental Revolving Loans and SRL Competitive Bid Loans) and outstanding
Supplemental Term Loans represent an amount greater than 50% of the sum of
all outstanding Term Loans, the Total Basic Revolving Loan Commitment (or
after the termination thereof, the sum of the then total outstanding
Basic Revolving Loans, BRL Competitive Bid Loans and Letter of Credit
Outstandings at such time), the Total Supplemental Revolving Loan Commitment
(or after the termination thereof, the sum of the then total outstanding
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Supplemental Revolving Loans and SRL Competitive Bid Loans) and all
outstanding Supplemental Term Loans.
"Restatement Effective Date" shall have the meaning
provided in Section 12.10.
"Retired Secured Debt" shall mean (i) all secured letters
of credit issued for the account of Holdings or any of its Subsidiaries to
the extent same have been returned undrawn to the respective issuers of such
letters of credit or to the extent of any permanent reduction of the same
without any drawing thereunder, (ii) all secured Contingent Obligations of
Holdings or any of its Subsidiaries to the extent that such Contingent
Obligations have been terminated without any Credit Party or any of its
respective Subsidiaries making any payment in respect thereof, (iii) all
secured Hedging Obligations of Holdings or any of its Subsidiaries to the
extent that such Hedging Obligations have been terminated without any Credit
Party or any of its respective Subsidiaries making any payment in respect
thereof and (iv) all Indebtedness of the type described in clause (iii) of
the definition of Indebtedness of Holdings or any of its Subsidiaries to the
extent that such Indebtedness has been permanently extinguished and the Lien
securing such Indebtedness on the property of the respective Credit Party or
any of its Subsidiaries has been unconditionally released.
"Retired Unsecured Debt" shall mean (i) all unsecured
letters of credit issued for the account of Holdings or any of its
Subsidiaries to the extent same have been returned undrawn to the respective
issuers of such letters of credit or to the extent of any permanent reduction
of the same without any drawing thereunder, (ii) all unsecured Contingent
Obligations of Holdings or any of its Subsidiaries to the extent that such
Contingent Obligations have been terminated without any Credit Party or any
of its respective Subsidiaries making any payment in respect thereof and
(iii) all unsecured Hedging Obligations of Holdings or any of its
Subsidiaries to the extent that such Hedging Obligations have been terminated
without any Credit Party or any of its respective Subsidiaries making any
payment in respect thereof.
"Reuters Screen LIBO Page" shall mean the display
designated as page "LIBO" on the Reuters Monitor Money Rates Service (or such
other pages as may replace the LIBO page on the service for the purpose of
displaying London interbank offered rates of major banks).
"Revolving Loan Maturity Date" shall mean December 15,
2002.
"Revolving Note" shall have the meaning provided in
Section 1.05(a).
"S&P" shall mean Standard & Poor's Ratings Services or
any successor corporation thereto.
"S&P Rating" shall have the meaning provided in the
definition of "Applicable Eurodollar Margin".
"Scheduled Repayments" shall have the meaning provided in
Section 4.02(b).
"SEC" shall have the meaning provided in Section 7.01(h).
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"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b).
"Securities Act" shall mean the Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder.
"Spread" shall mean a percentage per annum in excess of,
or less than, the Eurodollar Rate determined in accordance with clause (b) of
the definition thereof.
"Spread Borrowing" shall mean a Competitive Bid Borrowing
with respect to which the Borrower has requested the Banks to make
Competitive Bid Loans at a Spread.
"SRL Commitment Expiration Date" shall mean December 21,
1998, as such date may be extended pursuant to Section 1.14.
"SRL Commitment Fee" shall have the meaning provided in
Section 3.01(a)(ii).
"SRL Competitive Bid Loan" shall mean a Competitive Bid
Loan which is designated as such by the Borrower in the Notice of Competitive
Bid Borrowing related thereto.
"SRL Percentage" of any Bank at any time shall mean a
fraction (expressed as a percentage) the numerator of which is the
Supplemental Revolving Loan Commitment of such Bank at such time and the
denominator of which is the Total Supplemental Revolving Loan Commitment at
such time, PROVIDED that if the SRL Percentage of any Bank is to be
determined after the Total Supplemental Revolving Loan Commitment has been
terminated, then the SRL Percentages of the Banks shall be determined
immediately prior (and without giving effect) to such termination.
"Stage III Aircraft" shall mean aircraft owned by the
Borrower certified as Stage III aircraft, as set forth in Federal Aviation
Regulation 36.1(f)(6), 14 C.F.R. Section 36.1(f)(6) or any successor
regulation, as amended, and, until December 31, 1999, Stage II aircraft owned
by the Borrower which can be certified as Stage III aircraft pursuant to such
regulation, with only a paper change.
"Stated Amount" of any letter of credit, including,
without limitation, each Letter of Credit, shall, at any time, mean the
maximum amount available to be drawn thereunder (in each case determined
without regard to whether any conditions to drawing could then be met).
"STL Facility Percentage" shall mean a fraction
(expressed as a percentage) the numerator of which is the STL Facility
Percentage Amount at such time and the denominator of which is the sum of (x)
the STL Facility Percentage Amount at such time plus (y) the TL Facility
Percentage Amount at such time.
"STL Facility Percentage Amount" shall mean, at any time,
the aggregate principal amount of all outstanding Supplemental Term Loans at
such time.
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"Subsidiary" shall mean, as to any Person, (i) any
corporation more than 50% of whose stock having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any other class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person
and/or one or more Subsidiaries of such Person and (ii) any partnership,
limited liability company, association, joint venture or other entity in
which such Person and/or one or more Subsidiaries of such Person has more
than a 50% equity interest at the time; PROVIDED HOWEVER that notwithstanding
anything to the contrary, LAX Two and its Subsidiaries shall be deemed not to
be Subsidiaries of Holdings or any of its Subsidiaries for all purposes of
this Agreement (including, without limitation, the calculation of the
financial covenants and the definitions relating thereto) and the other
Credit Documents.
"Super-Majority Banks" shall mean Banks, the sum of whose
outstanding Term Loans, Basic Revolving Loan Commitments (or after the
termination thereof, outstanding Basic Revolving Loans, BRL Competitive Bid
Loans and BRL Percentage of Letter of Credit Outstandings), Supplemental
Revolving Loan Commitments (or after the termination thereof, outstanding
Supplemental Revolving Loans and SRL Competitive Bid Loans) and Supplemental
Term Loans represent an amount greater than or equal to 80% of the sum of all
outstanding Term Loans, the Total Basic Revolving Loan Commitment (or after
the termination thereof, the sum of the then total outstanding Basic
Revolving Loans, BRL Competitive Bid Loans and Letter of Credit Outstandings
at such time), the Total Supplemental Revolving Loan Commitment (or after the
termination thereof, the sum of the then total outstanding Supplemental
Revolving Loans and SRL Competitive Bid Loans) and all outstanding
Supplemental Term Loans.
"Supplemental Revolving Loan" shall have the meaning
provided in Section 1.01(e).
"Supplemental Revolving Loan Commitment" shall mean, for
each Bank, the amount set forth opposite such Bank's name in Schedule I
hereto directly below the column entitled "Supplemental Revolving Loan
Commitment", as the same may be (x) reduced from time to time pursuant to
Sections 1.14, 3.02, 3.03 and/or 9 or (y) adjusted from time to time as a
result of assignments to or from such Bank pursuant to Section 1.13 or
12.04(b).
"Supplemental Revolving Note" shall have the meaning
provided in Section 1.05(a).
"Supplemental Term Loan" shall have the meaning provided
in Section 1.01(f).
"Supplemental Term Loan Maturity Date" shall mean
December 15, 2002.
"Supplemental Term Note" shall have the meaning provided
in Section 1.05(a).
"Syndication Agent" shall have the meaning provided in
the first paragraph of this Agreement.
"Taxes" shall have the meaning provided in Section
4.04(a).
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"Term Loan" shall have the meaning provided in Section
1.01(a).
"Term Loan Commitment" shall mean for each Bank, the
amount set forth opposite such Bank's name in Schedule I hereto directly
below the column entitled "Term Loan Commitment," as same may be (x) reduced
from time to time pursuant to Sections 3.03 and/or 9 or (y) adjusted from
time to time as a result of assignments to or from such Bank pursuant to
Section 12.04(b).
"Term Loan Maturity Date" shall mean December 15, 2002.
"Term Note" shall have the meaning provided in Section
1.05(a).
"Termination Event" means (i) a "reportable event"
described in Section 4043 of ERISA or in the regulations thereunder
(excluding events for which the requirement for notice of such reportable
event has been waived under subsection .13, .14, .16, .18, .19 or .20 of PBGC
Regulation Section 2615), or (ii) the withdrawal of any Credit Party or any
of its ERISA Affiliates from a Pension Plan during a plan year in which it
was a "substantial employer" as defined in Section 4001(a)(2) of ERISA, or
(iii) the filing of a notice of intent to terminate a Pension Plan or the
treatment of a Pension Plan amendment as a termination under Section 4041 of
ERISA, or (iv) the institution of proceedings to terminate a Pension Plan by
the PBGC, or (v) any other event or condition which might constitute
reasonable grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan, or (vi) the
complete or partial withdrawal (within the meaning of Sections 4203 and 4205,
respectively, of ERISA) of any Credit Party or any of its ERISA Affiliates
from a Multiemployer Plan, or (vii) the insolvency or reorganization (within
the meaning of Section 4245 and 4241, respectively, of ERISA) of any
Multiemployer Plan.
"TL Facility Percentage" shall mean a fraction (expressed
as a percentage) the numerator of which is the TL Facility Percentage Amount
at such time and the denominator of which is the sum of (x) the TL Facility
Percentage Amount at such time plus (y) the STL Facility Percentage Amount at
such time.
"TL Facility Percentage Amount" shall mean, at any time,
the aggregate principal amount of all outstanding Term Loans at such time.
"Total Basic Revolving Loan Commitment" shall mean, at
any time, the sum of the Basic Revolving Loan Commitments of each of the
Banks.
"Total Commitment" shall mean, at any time, the sum of
the Commitments of each of the Banks.
"Total Supplemental Revolving Loan Commitment" shall
mean, at any time, the sum of the Supplemental Revolving Loan Commitments of
each of the Banks.
"Total Term Loan Commitment" shall mean, at any time, the
sum of the Term Loan Commitments of each of the Banks.
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"Total Unutilized Basic Revolving Loan Commitment" shall
mean, at any time, the sum of the Unutilized Basic Revolving Loan Commitments
of each of the Banks.
"Total Unutilized Supplemental Revolving Loan Commitment"
shall mean, at any time, the sum of the Unutilized Supplemental Revolving
Loan Commitments of each of the Banks.
"Tranche" shall mean the respective facility and
commitments utilized in making Loans hereunder, with there being three
separate Tranches, I.E., Term Loans, Basic Revolving Loans and Supplemental
Revolving Loans, PROVIDED, HOWEVER, in the event any Supplemental Revolving
Loans are converted into Supplemental Term Loans pursuant to Section 1.01(f),
from and after the Conversion Date there shall be four (assuming the SRL
Commitment Expiration Date is extended at such time) separate Tranches, I.E.,
Term Loans, Basic Revolving Loans, Supplemental Revolving Loans and
Supplemental Term Loans.
"Transaction" shall mean (i) the amendment and
restatement of the Existing Credit Agreement in the form of this Agreement as
provided herein, (ii) the incurrence of Loans hereunder on the Restatement
Effective Date, (iii) the conversion of Existing Loans on the Restatement
Effective Date pursuant to Section 1.01(a) and (b) and (iv) the repayment of
Existing Loans (together with interest and accrued Fees (under and as defined
in the Existing Credit Agreement)) on the Restatement Effective Date pursuant
to Section 12.18(c).
"Type" shall mean the type of Loan determined with regard
to the interest option applicable thereto, I.E., whether a Base Rate Loan or
a Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time
to time in effect in the relevant jurisdiction.
"United States" and "U.S." shall each mean the United
States of America.
"Unpaid Drawing" shall have the meaning provided in
Section 2.04(a).
"Unutilized Basic Revolving Loan Commitment" with respect
to any Bank, at any time, shall mean such Bank's Basic Revolving Loan
Commitment at such time less the sum of (i) the aggregate outstanding
principal amount of Basic Revolving Loans made by such Bank plus (ii) such
Bank's BRL Percentage of all Letter of Credit Outstandings.
"Unutilized Supplemental Revolving Loan Commitment" with
respect to any Bank, at any time, shall mean such Bank's Supplemental
Revolving Loan Commitment at such time less the aggregate outstanding
principal amount of Supplemental Revolving Loans made by such Bank.
"Voluntary Prepayment Right" shall have the meaning
provided in Section 1.03A(a).
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"Voting Stock" means capital stock issued by a
corporation, or equivalent interests in any other Person, the holders of
which are ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of
such a contingency.
"Wholly-Owned Subsidiary" shall mean, as to any Person,
(i) any corporation 100% of whose capital stock (other than director's
qualifying shares) is at the time owned by such Person and/or one or more
Wholly-Owned Subsidiaries of such Person and (ii) any partnership,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at
such time.
SECTION 11. THE AGENTS.
11.01 APPOINTMENT. The Banks hereby designate each
Agent as agent to act as specified herein and in the other Credit Documents.
Each Bank hereby irrevocably authorizes, and each holder of any Note by the
acceptance of such Note shall be deemed irrevocably to authorize, each Agent
to take such action on its behalf under the provisions of this Agreement, the
other Credit Documents and any other instruments and agreements referred to
herein or therein and to exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated to or required of each
Agent by the terms hereof and thereof and such other powers as are reasonably
incidental thereto. Each Agent may perform any of its duties hereunder by or
through its respective officers, directors, agents, employees or affiliates.
11.02 NATURE OF DUTIES. Each Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement
and the other Credit Documents. None of the Agents nor any of their
respective officers, directors, agents, employees or affiliates shall be
liable for any action taken or omitted by it or them hereunder or under any
other Credit Document or in connection herewith or therewith, unless caused
by its or their gross negligence or willful misconduct. The duties of each
Agent shall be mechanical and administrative in nature; each Agent shall not
have by reason of this Agreement or any other Credit Document a fiduciary
relationship in respect of any Bank or the holder of any Note; and nothing in
this Agreement or any other Credit Document, expressed or implied, is
intended to or shall be so construed as to impose upon any Agent any
obligations in respect of this Agreement or any other Credit Document except
as expressly set forth herein or therein.
11.03 LACK OF RELIANCE ON ANY AGENT. Independently and
without reliance upon each Agent, each Bank and the holder of each Note, to
the extent it deems appropriate, has made and shall continue to make (i) its
own independent investigation of the financial condition and affairs of
Holding and its Subsidiaries in connection with the making and the
continuance of the Loans and the taking or not taking of any action in
connection herewith and (ii) its own appraisal of the creditworthiness of
Holding and its Subsidiaries and, except as expressly provided in this
Agreement, each Agent shall not have any duty or responsibility, either
initially or on a continuing basis, to provide any Bank or the holder of any
Note with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter. Each Agent shall not be responsible to any Bank or the
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holder of any Note for any recitals, statements, information, representations
or warranties herein or in any document, certificate or other writing
delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority
or sufficiency of this Agreement or any other Credit Document or the
financial condition of Holding and its Subsidiaries or be required to make
any inquiry concerning either the performance or observance of any of the
terms, provisions or conditions of this Agreement or any other Credit
Document, or the financial condition of Holding and its Subsidiaries or the
existence or possible existence of any Default or Event of Default.
11.04 CERTAIN RIGHTS OF EACH AGENT. If any Agent shall
request instructions from the Required Banks with respect to any act or
action (including failure to act) in connection with this Agreement or any
other Credit Document, such Agent shall be entitled to refrain from such act
or taking such action unless and until such Agent shall have received
instructions from the Required Banks; and such Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, neither any Bank nor the holder of any Note shall have any right
of action whatsoever against any Agent as a result of such Agent acting or
refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Banks.
11.05 RELIANCE. Each Agent shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or telecopier message,
cablegram, radiogram, order or other document or telephone message signed,
sent or made by any Person that such Agent believed to be the proper Person,
and, with respect to all legal matters pertaining to this Agreement and any
other Credit Document and its duties hereunder and thereunder, upon advice of
counsel selected by such Agent.
11.06 INDEMNIFICATION. To the extent any Agent is not
reimbursed and indemnified by the Borrower the Banks will reimburse and
indemnify such Agent, in proportion to their respective "percentages" as used
in determining the Required Banks, for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed
on, asserted against or incurred by such Agent in performing its respective
duties hereunder or under any other Credit Document, in any way relating to
or arising out of this Agreement or any other Credit Document; PROVIDED that
no Bank shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent's gross negligence or willful
misconduct.
11.07 EACH AGENT IN ITS INDIVIDUAL CAPACITY. With
respect to its obligation to make Loans under this Agreement, each Agent
shall have the rights and powers specified herein for a "Bank" and may
exercise the same rights and powers as though it were not performing the
duties specified herein; and the term "Banks," "Required Banks," "holders of
Notes" or any similar terms shall, unless the context clearly otherwise
indicates, include each Agent in its individual capacity. Each Agent may
accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with any Credit Party or any Affiliate of
any Credit Party as if it were not performing the duties specified herein,
and may accept fees and
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other consideration from the Borrower or any other Credit Party for services
in connection with this Agreement and otherwise without having to account for
the same to the Banks.
11.08 HOLDERS. Each Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the
case may be, shall have been filed with such Agent. Any request, authority
or consent of any Person who, at the time of making such request or giving
such authority or consent, is the holder of any Note shall be conclusive and
binding on any subsequent holder, transferee, assignee or indorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
11.09 RESIGNATION BY THE AGENTS. (a) Each Agent may
resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents at any time by giving 15 Business Days'
prior written notice to the Borrower and the Banks. Such resignation shall
take effect upon the appointment of a successor Agent pursuant to clauses (b)
and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Banks shall
appoint a successor Agent hereunder or thereunder who shall be a commercial
bank or trust company reasonably acceptable to the Borrower.
(c) If a successor Agent shall not have been so
appointed within such 15 Business Day period, such resigning Agent, with the
consent of the Borrower, shall then appoint a successor Agent who shall serve
as Agent hereunder or thereunder until such time, if any, as the Banks
appoint a successor Agent as provided above.
(d) If no successor Agent has been appointed pursuant to
clause (b) or (c) above by the 20th Business Day after the date such notice
of resignation was given by such Agent, such Agent's resignation shall become
effective and the Required Banks shall thereafter perform all the duties of
such Agent hereunder and/or under any other Credit Document until such time,
if any, as the Banks appoint a successor Agent as provided above.
SECTION 12. MISCELLANEOUS.
12.01 PAYMENT OF EXPENSES, ETC. The Borrower shall:
(i) whether or not the transactions herein contemplated are consummated, pay
all reasonable and adequately documented fees and other out-of-pocket costs
and expenses (x) of each Agent (including, without limitation, the reasonable
and adequately documented fees and disbursements of White & Case) arising in
connection with the preparation, execution and delivery of this Agreement and
the other Credit Documents, the commitment letter, the term sheet and the
documents and instruments referred to herein and therein and any amendment,
waiver or consent relating hereto or thereto and of the Syndication Agent in
connection with its syndication efforts with respect to this Agreement (but
excluding attorneys' fees and disbursements) and (y) of each Agent and each
of the Banks in connection with the enforcement of this Agreement and the
other Credit Documents and the documents and instruments referred to herein
and therein (including, without limitation, the reasonable and adequately
documented fees and disbursements of counsel
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for each Agent and for each of the Banks including any reasonable allocated
costs of in-house counsel); (ii) pay and hold each of the Banks harmless from
and against any and all present and future stamp, excise and other similar
taxes with respect to the foregoing matters and save each of the Banks
harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable
to such Bank) to pay such taxes; and (iii) indemnify each Agent, each Bank
and each of their respective affiliates, and each of their respective
officers, directors, employees, representatives and agents from and hold each
of them harmless against any and all liabilities, obligations (including
removal or remedial actions), losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses and disbursements (including reasonable and
adequately documented attorneys' and consultants' fees and disbursements)
incurred by, imposed on or assessed against any of them as a result of, or
arising out of, or in any way related to, or by reason of, any investigation,
litigation or other proceeding (whether or not any Agent or any Bank is a
party thereto) related to the entering into and/or performance of this
Agreement or any other Credit Document, the commitment letter, the term sheet
or the actual or proposed use of any Letter of Credit or the proceeds of any
Loans hereunder or the consummation of any transactions contemplated herein
or in any other Credit Document or the exercise of any of their rights or
remedies provided herein or in the other Credit Documents, including, without
limitation, the reasonable and adequately documented fees and disbursements
of counsel and other consultants incurred in connection with any such
investigation, litigation or other proceeding (but excluding any losses,
liabilities, claims, damages or expenses to the extent arising or incurred by
reason of (x) a violation of laws or governmental regulations pertaining to
lending by the Person to be indemnified (or the Agent or Bank of which such
Person is an officer, director, employee, representative or agent); PROVIDED,
HOWEVER, that the Person to be indemnified shall, in all events, be entitled
to the indemnities set forth in Sections 1.10, 1.11, 2.05 and 4.04 to the
extent provided therein, or (y) the gross negligence or willful misconduct of
the Person to be indemnified). To the extent that the undertaking to
indemnify, pay or hold harmless any Person set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Borrower shall make the maximum contribution to the payment and
satisfaction of each of the indemnified liabilities which is permissible
under applicable law.
12.02 RIGHT OF SETOFF. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance
of an Event of Default, each Bank is hereby authorized at any time or from
time to time, without presentment, demand, protest or other notice of any
kind to any Credit Party or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and apply any and all
deposits (general or special) and any other Indebtedness at any time held or
owing by such Bank (including, without limitation, by branches and agencies
of such Bank wherever located) to or for the credit or the account of any
Credit Party against and on account of the Obligations and liabilities of any
Credit Party to such Bank under this Agreement or under any of the other
Credit Documents, including, without limitation, all interests in Obligations
purchased by such Bank pursuant to Section 12.06(b), and all other claims of
any nature or description arising out of or connected with this Agreement or
any other Credit Document, irrespective of whether or not such Bank shall
have made any demand hereunder and although said Obligations, liabilities or
claims, or any of them, shall be contingent or unmatured.
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12.03 NOTICES. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be
in writing (including telegraphic, telex, telecopier or cable communication)
and mailed, telegraphed, telexed, telecopied, cabled or delivered: if to a
Credit Party, at the address specified opposite its signature below; if to
any Bank, at the address specified for such Bank on Schedule II hereto; or,
at such other address as shall be designated by any party in a written notice
to the other parties hereto. All such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, be effective when received.
12.04 BENEFIT OF AGREEMENT. (a) This Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto; PROVIDED, HOWEVER,
no Credit Party may assign or transfer any of its rights, obligations or
interest hereunder or under any other Credit Document without the prior
written consent of the Banks and, PROVIDED FURTHER, that, although any Bank
may transfer, assign or grant participations in its rights hereunder, such
Bank shall remain a "Bank" for all purposes hereunder (and may not transfer
or assign all or any portion of its Commitments hereunder except as provided
in Section 12.04(b)) and the transferee, assignee or participant, as the case
may be, shall not constitute a "Bank" hereunder and, PROVIDED FURTHER, that
no Bank shall transfer or grant any participation under which the participant
shall have rights to approve any amendment to or waiver of this Agreement or
any other Credit Document except to the extent such amendment or waiver would
(i) extend the final scheduled maturity of any Loan, Note or Letter of Credit
(unless such Letter of Credit is not extended beyond the Revolving Loan
Maturity Date) in which such participant is participating, or reduce the rate
or extend the time of payment of interest or Fees thereon (except in
connection with a waiver of applicability of any post-default increase in
interest rates) or reduce the principal amount thereof, or increase the
amount of the participant's participation over the amount thereof then in
effect (it being understood that waivers or modifications of any conditions
precedent, covenants, Default or Event of Default or of a mandatory reduction
in the Total Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be
permitted without the consent of any participant if the participant's
participation is not increased as a result thereof) or (ii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement. In the case of any such participation, the participant
shall not have any rights under this Agreement or any of the other Credit
Documents (the participant's rights against such Bank in respect of such
participation to be those set forth in the agreement executed by such Bank in
favor of the participant relating thereto) and all amounts payable by the
Borrower hereunder shall be determined as if such Bank had not sold such
participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank
together with one or more other Banks) may (x) assign all or a portion of its
Basic Revolving Loan Commitment (and related outstanding Obligations
hereunder), its Supplemental Revolving Loan Commitment (and related
outstanding Obligations thereunder) and its outstanding Loans to its parent
company and/or any affiliate of such Bank or to one or more Banks or (y)
assign all, or if less than all, a portion equal to at least $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, of such Basic Revolving
Loan Commitments, Supplemental Revolving Loan Commitments and outstanding
principal amount of Loans hereunder to one or more Eligible Transferees, each
of
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which assignees shall become a party to this Agreement as a Bank by execution
of an Assignment and Assumption Agreement; PROVIDED that, (i) at such time
Schedule I shall be deemed modified to reflect the Commitments (and/or
outstanding Loans, as the case may be) of such new Bank and of the existing
Banks, (ii) new Notes will be issued, at the Borrower's expense, to such new
Bank and to the assigning Bank upon the request of such new Bank or assigning
Bank, such new Notes to be in conformity with the requirements of Section
1.05 (with appropriate modifications) to the extent needed to reflect the
revised Commitments (and/or outstanding Loans), (iii) only with respect to
any assignment pursuant to clause (y) of this Section 12.04(b), the consent
of the Administrative Agent and the Borrower shall be required (which
consents shall not be unreasonably withheld or delayed); PROVIDED, HOWEVER,
the consent of the Borrower shall not be required at any time after an Event
of Default shall have occurred and is then continuing, and (iv) the
Administrative Agent shall receive at the time of each such assignment, from
the assigning or assignee Bank, the payment of a non-refundable assignment
fee of $3,500 and, PROVIDED FURTHER, that such transfer or assignment will
not be effective until recorded by the Administrative Agent on the Register
pursuant to Section 12.17 hereof. To the extent of any assignment pursuant
to this Section 12.04(b), the assigning Bank shall be relieved of its
obligations hereunder with respect to its assigned Commitments. At the time
of each assignment pursuant to this Section 12.04(b) to a Person which is not
already a Bank hereunder and which is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for Federal income tax
purposes, the respective assignee Bank shall provide to the Borrower and the
Agent the appropriate Internal Revenue Service Forms (and, if applicable a
Section 4.04(b)(ii) Certificate) described in Section 4.04(b).
(c) Any Bank may at any time pledge or assign all or any
portion of its rights under this Agreement or any other Credit Document to
any Federal Reserve Bank without notice to or consent of any Credit Party.
No such pledge or assignment shall release the transferor Bank from its
obligations hereunder.
12.05 NO WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of any Agent or any Bank or any holder of any Note in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any other Credit
Party and any Agent or any Bank or the holder of any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder or under any other Credit Document preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights, powers and remedies herein or
in any other Credit Document expressly provided are cumulative and not
exclusive of any rights, powers or remedies which any Agent or any Bank or
the holder of any Note would otherwise have. No notice to or demand on any
Credit Party in any case shall entitle any Credit Party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of any Agent or any Bank or the holder of any Note to
any other or further action in any circumstances without notice or demand.
12.06 PAYMENTS PRO RATA. (a) Except as otherwise
provided in this Agreement, the Administrative Agent agrees that promptly
after its receipt of each payment from or on behalf of the Borrower in
respect of any Obligations hereunder, it shall distribute such payment to the
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Banks (other than any Bank that has consented in writing to waive its PRO
RATA share of any such payment) PRO RATA based upon their respective shares,
if any, of the Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive
any amount hereunder (whether by voluntary payment, by realization upon
security, by the exercise of the right of setoff or banker's lien, by
counterclaim or cross action, by the enforcement of any right under the
Credit Documents, or otherwise), which is applicable to the payment of the
principal of, or interest on, the Loans, Unpaid Drawings, Commitment Fees or
Letter of Credit Fees, of a sum which with respect to the related sum or sums
received by other Banks is in a greater proportion than the total of such
Obligation then owed and due to such Bank bears to the total of such
Obligation then owed and due to all of the Banks immediately prior to such
receipt, then such Bank receiving such excess payment shall purchase for cash
without recourse or warranty from the other Banks an interest in the
Obligations of the respective Credit Party to such Banks in such amount as
shall result in a proportional participation by all the Banks in such amount;
PROVIDED that if all or any portion of such excess amount is thereafter
recovered from such Bank, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
12.07 CALCULATIONS; COMPUTATIONS. (a) The financial
statements to be furnished to the Banks pursuant hereto shall be made and
prepared in accordance with generally accepted accounting principles in the
United States consistently applied throughout the periods involved (except as
set forth in the notes thereto or as otherwise disclosed in writing by the
Borrower to the Banks); PROVIDED that, except as otherwise specifically
provided herein, all computations determining compliance with Section 8 shall
utilize accounting principles and policies in conformity with those used to
prepare the historical financial statements delivered to the Banks pursuant
to Section 6.05(a) (with the foregoing generally accepted accounting
principles, subject to the preceding proviso, herein called "GAAP").
(b) All computations of interest with respect to Base
Rate Loans shall be made on the basis of a year consisting of 365 (or, if
applicable, 366) days for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest
is payable. All other computations of interest and all computations of
Commitment Fees and all other Fees hereunder shall be made on the basis of a
year of 360 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest,
Commitment Fees or other Fees are payable.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
SITTING IN THE CITY OF NEW YORK OR OF THE
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UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH CREDIT PARTY HEREBY IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. EACH CREDIT PARTY HEREBY DESIGNATES,
APPOINTS AND EMPOWERS CT CORPORATION SYSTEM, WITH OFFICES ON THE DATE HEREOF
AT 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, AS ITS DESIGNEE, APPOINTEE AND
AGENT TO RECEIVE AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS
PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND
DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY
REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT
AS SUCH, EACH CREDIT PARTY AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND
AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION
SATISFACTORY TO THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT. EACH CREDIT
PARTY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY
CREDIT PARTY AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH
SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF ANY AGENT UNDER THIS AGREEMENT, ANY BANK OR THE HOLDER OF
ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY CREDIT PARTY IN ANY OTHER
JURISDICTION.
(b) EACH CREDIT PARTY HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO
IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO
PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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12.09 COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall
be lodged with the Borrower and each Agent.
12.10 EFFECTIVENESS. This Agreement shall become
effective on the date (the "Restatement Effective Date") on which each Credit
Party, each Agent, each of the Banks (including each Continuing Bank and each
New Bank) and the Required Banks (determined immediately before the
occurrence of the Restatement Effective Date) shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have delivered
the same to the Administrative Agent at its Notice Office or, in the case of
the Banks, shall have given to the Administrative Agent telephonic (confirmed
in writing), written, telecopy or telex notice (actually received) at such
office that the same has been signed and mailed to it and (ii) each of the
conditions contained in Sections 5A, 5B and 12.10(b) is met.
(b) On the Restatement Effective Date, each New Bank and
Continuing Bank shall have delivered to the Administrative Agent for the
account of the Borrower an amount equal to (i) in the case of each New Bank,
the Term Loans, Basic Revolving Loans and Supplemental Revolving Loans to be
made by such New Bank on the Restatement Effective Date and (ii) in the case
of each Continuing Bank, the amount by which the principal amount of Loans to
be made and/or converted by such Continuing Bank on the Restatement Effective
Date exceeds the amount of the Existing Loans of such Continuing Bank
outstanding on the Restatement Effective Date. Notwithstanding anything to
the contrary contained in this Section 12.10(b), in satisfying the foregoing
condition, unless the Administrative Agent shall have been notified by any
Bank prior to the occurrence of the Restatement Effective Date that such Bank
does not intend to make available to the Administrative Agent such Bank's
Term Loans, Basic Revolving Loans and Supplemental Revolving Loans required
to be made by it on such date, then the Administrative Agent may, in reliance
on such assumption, make available to the Borrower the corresponding amounts
in accordance with the provisions of Section 1.04 of this Agreement, and the
making available by the Administrative Agent of such amounts shall satisfy
the condition contained in this Section 12.10(b).
12.11 HEADINGS DESCRIPTIVE. The headings of the several
sections and subsections of this Agreement are inserted for convenience only
and shall not in any way affect the meaning or construction of any provision
of this Agreement.
12.12 AMENDMENT OR WAIVER; ETC. (a) Neither this
Agreement nor any other Credit Document nor any terms hereof or thereof may
be changed, waived, discharged or terminated unless such change, waiver,
discharge or termination is in writing signed by the respective Credit
Parties party thereto and the Required Banks, PROVIDED that no such change,
waiver, discharge or termination shall, without the consent of each Bank
(with Obligations being directly affected thereby in the case of the
following clause (i)), (i) extend the final scheduled maturity of any Loan or
Note or extend the stated maturity of any Letter of Credit beyond the
Revolving Loan Maturity Date, or reduce the rate or extend the time of
payment of interest or
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Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates), or reduce the principal amount
thereof (except to the extent repaid in cash), (ii) amend, modify or waive
any provision of this Section 12.12, (iii) reduce the percentage specified in
the definition of Required Banks (it being understood that, with the consent
of the Required Banks, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Required Banks on
substantially the same basis as the extensions of Term Loans, Basic Revolving
Loan Commitments and Supplemental Revolving Loan Commitments are included on
the Restatement Effective Date), (iv) release a Guarantor from its Guaranty
or (v) consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement; PROVIDED FURTHER, that no such
change, waiver, discharge or termination shall (w) be effective for purposes
of determining whether the conditions to the obligations of the Banks with
Supplemental Revolving Loan Commitments to make Supplemental Revolving Loans
set forth in Section 5B.02 have been satisfied, without the consent of Banks,
the sum of whose Supplemental Revolving Loan Commitments represent an amount
greater than 50% of the Total Supplemental Revolving Loan Commitment, (x)
increase the Commitments of any Bank over the amount thereof then in effect
without the consent of such Bank except pursuant to Section 1.01(c) (it being
understood that waivers or modifications of conditions precedent, covenants,
Defaults or Events of Default or of a mandatory reduction in the Total
Commitment shall not constitute an increase of the Commitment of any Bank,
and that an increase in the available portion of any Commitment of any Bank
shall not constitute an increase in the Commitment of such Bank), (y) without
the consent of the Issuing Bank affected thereby, amend, modify or waive any
provision of Section 2 or alter its rights or obligations with respect to any
Letter of Credit issued by such Issuing Bank and (z) without the consent of
each Agent affected thereby, amend, modify or waive any provision of Section
11 as same applies to such Agent or any other provision as same relates to
the rights or obligations of such Agent.
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clause (a)(i) through (v), inclusive, of the first proviso to
Section 12.12(a), the consent of the Required Banks is obtained but the
consent of one or more of such other Banks whose consent is required is not
obtained, then the Borrower shall have the right, so long as each
non-consenting Bank whose individual consent is required is treated as
described in either clause (A) or (B) below, to either (A) replace such
non-consenting Bank with one or more Replacement Banks pursuant to Section
1.13 so long as at the time of such replacement, each such Replacement Bank
consents to the proposed change, waiver, discharge or termination or (B)
terminate all of such non-consenting Bank's Commitments and repay in full its
outstanding Loans, in accordance with Sections 3.02(b) and/or 4.01(b),
PROVIDED that, unless the Commitments terminated and Loans repaid pursuant to
preceding clause (B) are immediately replaced in full at such time through
the addition of new Banks or the increase of the Commitments and/or
outstanding Loans of existing Banks (who in each case must specifically
consent thereto), then in the case of any action pursuant to preceding clause
(B) the Required Banks (determined both before and after giving effect to the
proposed action) shall specifically consent thereto, PROVIDED FURTHER, that
the Borrower shall not have the right to replace a Bank solely as a result of
the exercise of such Bank's rights (and the withholding of any required
consent by such Bank) pursuant to the second proviso to Section 12.12(a).
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12.13 SURVIVAL. All indemnities set forth herein
including, without limitation, in Sections 1.10, 1.11, 2.05, 4.04, 12.01 and
12.06 shall, subject to Section 12.15 (to the extent applicable), survive the
execution, delivery and termination of this Agreement and the Notes and the
making and repayment of the Loans.
12.14 DOMICILE OF LOANS. Each Bank may transfer and
carry its Loans at, to or for the account of any office, Subsidiary or
Affiliate of such Bank. Notwithstanding anything to the contrary contained
herein, to the extent that a transfer of Loans pursuant to this Section 12.14
would, at the time of such transfer, result in increased costs under Section
1.10, 1.11, 2.05 or 4.04 from those being charged by the respective Bank
prior to such transfer, then the Borrower shall not be obligated to pay such
increased costs (although the Borrower shall be obligated to pay any other
increased costs of the type described above resulting from changes giving
rise to such increased costs after the date of the respective transfer).
12.15 LIMITATION ON ADDITIONAL AMOUNTS, ETC.
Notwithstanding anything to the contrary contained in Section 1.10, 1.11,
2.05 or 4.04 of this Agreement, unless a Bank gives notice to the Borrower
that it is obligated to pay an amount under such Section within 180 days
after the date the Bank incurs the respective increased costs, Taxes, loss,
expense or liability, reduction in amounts received or receivable or
reduction in return on capital, then such Bank shall only be entitled to be
compensated for such amount by the Borrower pursuant to said Section 1.10,
1.11, 2.05 or 4.04, as the case may be, to the extent the costs, Taxes, loss,
expense or liability, reduction in amounts received or receivable or
reduction in return on capital are incurred or suffered on or after the date
which occurs 180 days prior to such Bank giving notice to the Borrower that
it is obligated to pay the respective amounts pursuant to said Section 1.10,
1.11, 2.05 or 4.04, as the case may be. This Section 12.15 shall have no
applicability to any Section of this Agreement other than said Sections 1.10,
1.11, 2.05 and 4.04.
12.16 CONFIDENTIALITY. (a) Subject to the provisions
of clause (b) of this Section 12.16, each Bank shall hold all non-public
information obtained pursuant to the requirements of this Agreement which has
been identified as such by any Credit Party in accordance with its customary
procedure for handling confidential information of this nature and in
accordance with safe and sound banking practices and in any event may make
disclosure reasonably to any bona fide prospective transferee or participant
in connection with the contemplated transfer of any Loan or Commitment or
participation therein or as required or requested by any governmental agency
or representative thereof or pursuant to legal process or to such Bank's
attorneys, affiliates or independent auditors; PROVIDED that, unless
specifically prohibited by applicable law or court order, each Bank shall
notify Holdings of any request by any governmental agency or representative
thereof (other than any such request in connection with an examination of the
financial condition of such Bank by such governmental agency) for disclosure
of any such non-public information prior to disclosure of such information;
and PROVIDED FURTHER, that in no event shall any Bank be obligated or
required to return any materials furnished by Holdings or any of its
Subsidiaries, PROVIDED that in the case of disclosure to any prospective
transferee or participant, such Person executes an agreement with such Bank
containing provisions substantially the same as to those contained in this
Section 12.16.
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(b) Each Credit Party hereby acknowledges and agrees
that each Bank may share with any of its affiliates any information related
to Holdings or any of its Subsidiaries (including, without limitation, any
nonpublic customer information regarding the creditworthiness of Holdings or
any of its Subsidiaries), PROVIDED such Persons shall be subject to the
provisions of this Section 12.16 to the same extent as such Bank.
12.17 REGISTRY. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes of
this Section 12.17, to maintain a register (the "Register") on which it will
record the Commitments from time to time of each of the Banks, the Loans
(including, with respect to each Competitive Bid Loan, the maturity and
interest rates applicable thereto) made by each of the Banks and each
repayment in respect of the principal amount of the Loans of each Bank.
Failure to make any such recordation, or any error in such recordation shall
not affect the Borrower's obligations in respect of such Loans. With respect
to any Bank, the transfer of the Commitments of such Bank and the rights to
the principal of, and interest on, any Loan made pursuant to such Commitments
shall not be effective until such transfer is recorded on the Register
maintained by the Administrative Agent with respect to ownership of such
Commitments and Loans and prior to such recordation all amounts owing to the
transferor with respect to such Commitments and Loans shall remain owing to
the transferor. The registration of assignment or transfer of all or part of
any Commitments and Loans shall be recorded by the Administrative Agent on
the Register only upon the acceptance by the Administrative Agent of a
properly executed and delivered Assignment and Assumption Agreement pursuant
to Section 12.04(b). Coincident with the delivery of such an Assignment and
Assumption Agreement to the Administrative Agent for acceptance and
registration of assignment or transfer of all or part of a Loan, or as soon
thereafter as practicable, the assigning or transferor Bank shall surrender
the Note evidencing such Loan, and thereupon one or more new Notes in the
same aggregate principal amount shall be issued to the assigning or
transferor Bank and/or the new Bank. The Borrower agrees to indemnify the
Administrative Agent from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted against or
incurred by the Administrative Agent in performing its duties under this
Section 12.17.
12.18 ADDITION OF NEW BANKS; CONVERSION OF EXISTING
LOANS OF CONTINUING BANKS; TERMINATION OF COMMITMENTS OF NON-CONTINUING
BANKS. (a) On and as of the occurrence of the Restatement Effective Date in
accordance with Section 12.10, each New Bank shall become a "Bank" under, and
for all purposes of, this Agreement and the other Credit Documents.
(b) The parties hereto acknowledge that each Existing
Bank has been offered the opportunity to participate in this Agreement, after
the occurrence of the Restatement Effective Date, as a Continuing Bank
hereunder, but that no Existing Bank is obligated to be a Continuing Bank.
By their execution and delivery hereof, Holdings, NWA, the Borrower and the
Required Banks (determined immediately before the occurrence of the
Restatement Effective Date) consent to the voluntary repayment by the
Borrower of all outstanding Existing Loans and other Obligations owing to
each Existing Bank which has not elected to become a Continuing Bank (each
such Bank, a "Non-Continuing Bank") and to the voluntary termination by the
Borrower of
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the Revolving Loan Commitment (under, and as defined in, the Existing Credit
Agreement) of each Non-Continuing Bank, in each case to be effective on, and
contemporaneously with the occurrence of, the Restatement Effective Date, in
each case in accordance with the provisions of Section 12.18(c).
(c) Notwithstanding anything to the contrary contained
in the Existing Credit Agreement or any Credit Document, the Borrower and
each of the Banks hereby agrees that on the Restatement Effective Date, (i)
each Bank with a Commitment as set forth on Schedule I (after giving effect
to the Restatement Effective Date) shall make or maintain (including by way
of conversion) that principal amount of Term Loans, Basic Revolving Loans
and/or Supplemental Revolving Loans to the Borrower as is required by Section
1.01, provided that if the Existing Loans of any Continuing Bank outstanding
on the Restatement Effective Date (immediately before giving effect thereto)
exceed the aggregate principal amount of Loans required to be made available
by such Bank on such date (after giving effect to the Restatement Effective
Date), then Existing Loans of such Continuing Bank in an amount equal to such
excess shall be repaid on the Restatement Effective Date to such Continuing
Bank and (ii) in the case of each Non-Continuing Bank, all of such
Non-Continuing Bank's Existing Loans outstanding on the Restatement Effective
Date shall be repaid in full on such date, together with interest thereon and
all accrued Fees (under, and as defined in, the Existing Credit Agreement)
and any other amounts owing to such Non-Continuing Bank, and the Revolving
Loan Commitment (under, and as defined in, the Existing Credit Agreement) of
such Non-Continuing Bank, if any, shall be terminated, effective upon the
occurrence of the Restatement Effective Date. Notwithstanding anything to the
contrary contained in the Existing Credit Agreement, this Agreement or any
other Credit Document, the parties hereto hereby consent to the repayments
and reductions required above, and agree that in the event that any Existing
Bank shall fail to execute a counterpart of this Agreement prior to the
occurrence of the Restatement Effective Date, such Existing Bank shall be
deemed to be a Non-Continuing Bank and, concurrently with the occurrence of
the Restatement Effective Date, the Revolving Loan Commitment (under, and as
defined in, the Existing Credit Agreement) of such Existing Bank, if any,
shall be terminated, all Existing Loans of such Existing Bank outstanding on
the Restatement Effective Date shall be repaid in full, together with
interest thereon and all accrued Fees (under, and as defined in, the Existing
Credit Agreement) and any other amounts owing to such Existing Bank, and
concurrently with the occurrence of the Restatement Effective Date, such
Existing Bank shall no longer constitute a "Bank" under this Agreement and
the other Credit Documents, provided that all indemnities of the Credit
Parties under the Existing Credit Agreement and the other Credit Documents
(as in effect prior to the Restatement Effective Date) for the benefit of
such Existing Bank shall survive in accordance with the terms thereof.
SECTION 13. GUARANTY.
13.01 THE GUARANTY. In order to induce the Banks to
enter into this Agreement and to extend credit hereunder and in recognition
of the direct benefits to be received by the Guarantors from the proceeds of
the Loans and the issuance of the Letters of Credit, each Guarantor hereby
jointly and severally agrees with the Agents and the Banks as follows: each
Guarantor hereby jointly and severally, unconditionally and irrevocably
guarantees as primary
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obligor and not merely as surety the full and prompt payment when due,
whether upon maturity, by acceleration or otherwise, of any and all
indebtedness of the Borrower to each of the Banks and each of the Agents. If
any or all of the indebtedness of the Borrower to the Banks or the Agents
becomes due and payable hereunder, each Guarantor unconditionally promises on
a joint and several basis to pay such indebtedness to the Banks or the
Agents, as the case may be, or order, on demand, together with any and all
expenses which may be incurred by the Agents or the Banks in collecting any
of the indebtedness. The word "indebtedness" is used in this Section 13 in
its most comprehensive sense and includes any and all advances, debts,
obligations and liabilities of the Borrower arising in connection with this
Agreement and any other Credit Document, in each case, heretofore, now, or
hereafter made, incurred or created, whether voluntarily or involuntarily,
absolute or contingent, liquidated or unliquidated, determined or
undetermined, whether or not such indebtedness is from time to time reduced,
or extinguished and thereafter increased or incurred, whether the Borrower
may be liable individually or jointly with others, whether or not recovery
upon such indebtedness may be or hereafter become barred by any statute of
limitations, and whether or not such indebtedness may be or hereafter become
otherwise unenforceable.
13.02 BANKRUPTCY. Additionally, each Guarantor jointly
and severally, unconditionally and irrevocably guarantees the payment of any
and all indebtedness of the Borrower to each of the Banks and each of the
Agents whether or not due or payable by the Borrower upon the occurrence in
respect of the Borrower of any of the events specified in Section 9.05, and
unconditionally promises to pay such indebtedness to each of the Banks and
each of the Agents, or order, on demand, in lawful money of the United States.
13.03 NATURE OF LIABILITY. The liability of each
Guarantor hereunder is exclusive and independent of any security for or other
guaranty of the indebtedness of the Borrower whether executed by each
Guarantor, any other guarantor or by any other party, and the liability of
each Guarantor hereunder shall not be affected or impaired by (a) any
direction as to application of payment by the Borrower or by any other party,
or (b) any other continuing or other guaranty, undertaking or maximum
liability of a guarantor or of any other party as to the indebtedness of the
Borrower, or (c) any payment on or in reduction of any such other guaranty or
undertaking, or (d) any dissolution, termination or increase, decrease or
change in personnel by the Borrower, or (e) any payment made to the Agents or
the Banks on the indebtedness which such Agents or such Banks repay the
Borrower pursuant to court order in any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding, and each Guarantor
waives any right to the deferral or modification of its obligations hereunder
by reason of any such proceeding.
13.04 INDEPENDENT OBLIGATION. The obligations of each
Guarantor hereunder are independent of the obligations of any other guarantor
or the Borrower, and a separate action or actions may be brought and
prosecuted against each Guarantor whether or not action is brought against
any other guarantor or the Borrower and whether or not any other guarantor or
the Borrower be joined in any such action or actions. Each Guarantor waives,
to the fullest extent permitted by law, the benefit of any statute of
limitations affecting its liability hereunder or the enforcement thereof.
Any payment by the Borrower or other circumstance which operates to toll
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any statute of limitations as to the Borrower shall operate to toll the
statute of limitations as to each Guarantor.
13.05 AUTHORIZATION. Each Guarantor authorizes the
Agents and the Banks without notice or demand (except as shall be required by
applicable statute and which cannot be waived), and without affecting or
impairing its liability hereunder, from time to time to (a) renew,
compromise, extend, increase, accelerate or otherwise change the time for
payment of, or otherwise change the terms of, the indebtedness or any part
thereof in accordance with this Agreement, including any increase or decrease
of the rate of interest thereon, (b) take and hold security from any
guarantor or any other party for the payment of this guaranty or the
indebtedness and exchange, enforce, waive and release any such security, (c)
apply such security and direct the order or manner of sale thereof as the
Agents and the Banks in their discretion may determine and (d) release or
substitute any one or more endorsers, guarantors, the Borrower or other
obligors.
13.06 RELIANCE. It is not necessary for the Agents or
the Banks to inquire into the capacity or powers of the Borrower or its
Subsidiaries or the officers, directors, partners or agents acting or
purporting to act on its behalf, and any indebtedness made or created in
reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
13.07 SUBORDINATION. Any indebtedness of the Borrower
now or hereafter held by either Guarantor is hereby subordinated to the
indebtedness of the Borrower to the Agents and the Banks; and such
indebtedness of the Borrower to such Guarantor, if any Agent, after an Event
of Default has occurred and is continuing, so requests, shall be collected,
enforced and received by such Guarantor as trustee for the Banks and be paid
over to the Banks and the Agents on account of the indebtedness of the
Borrower to the Banks and the Agents, but without affecting or impairing in
any manner the liability of such Guarantor under the other provisions of this
Guaranty. Prior to the transfer by either Guarantor of any note or
negotiable instrument evidencing any indebtedness of the Borrower to such
Guarantor, such Guarantor shall xxxx such note or negotiable instrument with
a legend that the same is subject to this subordination.
13.08 WAIVER. (a) Each Guarantor waives any right
(except as shall be required by applicable statute and which cannot be
waived) to require the Agents or the Banks to (a) proceed against the
Borrower, any other guarantor or any other party, (b) proceed against or
exhaust any security held from the Borrower, any other guarantor or any other
party or (c) pursue any other remedy in the Agents' or the Banks' power
whatsoever. Each Guarantor waives any defense based on or arising out of any
defense of the Borrower, any other guarantor or any other party other than
payment in full of the indebtedness, including, without limitation, any
defense based on or arising out of the disability of the Borrower, any other
guarantor or any other party, or the unenforceability of the indebtedness or
any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower other than payment in full of the indebtedness.
The Agents and the Banks may, at their election, foreclose on any security
held by the Agents or the Banks by one or more judicial or nonjudicial sales
(to the extent such sale is permitted by applicable law), or exercise any
other right or remedy the Agents and the Banks may have against the Borrower
or any other party, or any security, without affecting or impairing in any
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way the liability of each Guarantor hereunder except to the extent the
indebtedness has been paid. Each Guarantor waives any defense arising out of
any such election by the Agents and the Banks, even though such election
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of such Guarantor against the Borrower or any other
party or any security. Until all indebtedness of the Borrower to the Banks
and to the Agents shall have been paid in full, each Guarantor agrees that it
will not exercise any right of subrogation, and waives any right to enforce
any remedy which the Agents and the Banks now have or may hereafter have
against the Borrower, and waives any benefit of, and any right to participate
in, any security now or hereafter held by the Agents and the Banks.
(b) Each Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of
acceptance of this Guaranty, and notices of the existence, creation or
incurring of new or additional indebtedness. Each Guarantor assumes all
responsibility for being and keeping itself informed of the Borrower's
financial condition and assets, and of all other circumstances bearing upon
the risk of nonpayment of the indebtedness and the nature, scope and extent
of the risks which each Guarantor assumes and incurs hereunder, and agrees
that the Agents and the Banks shall have no duty to advise either Guarantor
of information known to them regarding such circumstances or risks.
13.09 LIMITATION ON ENFORCEMENT. The Banks agree that
this Guaranty may be enforced on their behalf only by the action of an Agent
acting upon the instructions of the Required Banks and that no Bank shall
have any right individually to seek to enforce or to enforce this Guaranty,
it being understood and agreed that such rights and remedies may be exercised
by each Agent for the benefit of the Banks upon the terms of this Agreement.
ENDNOTES
1 Each New Bank to be designated by the use of an asterisk.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date
first above written.
Address:
If by mail: NORTHWEST AIRLINES CORPORATION
0000 Xxxxxxxxx Xxxxx
Xx. Xxxx, XX 00000
By /s/ Xxxxxx Xxxxxxx
If by courier: Title: Senior Vice President-
0000 Xxxx Xxx Xxxxxxx Xxxxxxx xxx Xxxxxxxxx
Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 NWA INC.
Attn: Xxxxxx Xxxxxxx,
Senior Vice President
Finance and Treasurer By /s/ Xxxxxx Xxxxxxx
Title: Senior Vice President-
Finance and Treasurer
NORTHWEST AIRLINES, INC.
By /s/ Xxxxxx Xxxxxxx
Title: Senior Vice President-
Finance and Treasurer
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ABN AMRO BANK N.V., CHICAGO BRANCH,
Individually and as Compliance
Agent
By: /s/ Xxxx X. Xxxxx
---------------------------------
Title: Senior Vice President
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Title: Group Vice President
BANKERS TRUST COMPANY, Individually and
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Title: Assistant Vice President
CHASE SECURITIES INC, as
Syndication Agent
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Managing Director
THE CHASE MANHATTAN BANK,
Individually and as Administrative
Agent
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Title:
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CITIBANK, N.A., as Documentation Agent
By: /s/ Xxxx X. Xxxx
---------------------------------
Title: Vice President
CITICROP USA, INC.
By: /s/ Xxxx X. Xxxx
---------------------------------
Title: Vice President
NATIONAL WESTMINSTER BANK PLC, NEW YORK
BRANCH, Individually and as an
Agent
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Title: Vice President
NATIONAL WESTMINISTER BANK PLC, NASSAU
BRANCH, Individually and as an
Agent
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Title: Vice President
FIRST BANK NATIONAL ASSOCIATION,
Individually and as an Agent
By: /s/ Xxxx X. Xxxxx
---------------------------------
Title: Vice President
-00-
XXXX XX XXXXXXX NATIONAL TRUST & SAVINGS
ASSOCATION, A NATIONAL BANKING
ASSOCIATION
By: /s/ Xxxxx Xxxxx
---------------------------------
Title: Managing Director
CIBC INC.
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Title: Executive Director
CIBC Xxxxxxxxxxx Corp.,
as agent
BANK OF TOKYO-MITSUBISHI, LTD, CHICAGO
BRANCH
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Title: Deputy General Manager
BANQUE NATIONALE DE PARIS
By: /s/ Jo Xxxxx Xxxxxx
---------------------------------
Title: Vice President and Manager
XXXXX XXX COMMERCIAL BANK, LTD., NEW
YORK BRANCH
By: /s/ Wan-Tu Yeh
---------------------------------
Title: VP and General Manager
CHRISTIANIA BANK OG KREDITKASSE ASA, NEW
YORK BRANCH
-94-
By: /s/ Xxxx-Xxxxxx Xxxxxxxx
---------------------------------
Title: First Vice President
By: /s/ Hans Chr. Kjelsrud
---------------------------------
Title: First Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Title: Vice President
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Title: Director
THE DAI-ICHI KANGYO BANK, LTD., CHICAGO
BRANCH
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Title: Vice President
-95-
THE FUJI BANK, LIMITED
By: /s/ X. Xxxxxxxxx
---------------------------------
Title: General Manager
THE MITSUBISHI TRUST AND BANKING
CORPORATION, NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Title: Senior Vice President
ROYAL BANK OF CANADA
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Title: Manager
THE SAKURA BANK, LTD.
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------
Title: Joint General Manager
THE SANWA BANK, LIMITED
By: /s/ X. Xxxxx
---------------------------------
Title: Assistant General Manager
-96-
THE SUMITOMO BANK, LIMITED, CHICAGO
BRANCH
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Title: Senior Vice President
THE SUMITOMO TRUST AND BANKING CO.,
LTD., LOS ANGELES AGENCY
By: /s/ Xxxxxxx Xxxx
---------------------------------
Title: Manager and Vice President
XXXXX XXXX BANK CO., LTD. NEW YORK
AGENCY
By: /s/ Xxxxx-Si Xxxx
---------------------------------
Title: SVP and GM
-97-
SCHEDULE I
COMMITMENTS(1)
Outstanding Supplemental
Outstanding Existing Term Loan Existing Revolving Basic Revolving Loan Revolving Loan
Bank Term Loans Commitment Loans Commitment Commitment
---- -------------------- ------------ ------------------ -------------------- --------------
ABN AMRO Bank N.V., $7,846,153.85 $11,250,000 $0 $50,625,000 $13,125,000
Chicago Branch
Bankers Trust Company 7,846,153.85 $11,250,000 $0 $50,625,000 $13,125,000
The Chase Manhattan 7,846,153.85 $12,750,000 $0 $57,375,000 $14,875,000
Bank
Citicorp USA, Inc. 7,846,153.85 $11,250,000 $0 $50,625,000 $13,125,000
First Bank National 7,846,153.85 $11,250,000 $0 $50,625,000 $13,125,000
Association
National Westminster 7,846,153.85 $11,250,000 $0 $50,625,000 $13,125,000
Bank PLC
The Sakura Bank, Ltd. 7,384,615.38 $4,500,000 $0 $20,250,000 $5,250,000
Credit Lyonnais, New 6,923,076.92 $9,000,000 $0 $40,500,000 $10,500,000
York Branch
The Fuji Bank, Limited 6,923,076.92 $7,500,000 $0 $33,750,000 $8,750,000
The Mitsubishi Trust 6,923,076.92 $4,500,000 $0 $20,250,000 $5,250,000
and Banking
Corporation, New York
Branch
The Sanwa Bank, 6,923,076.92 $3,750,000 $0 $16,875,000 $4,375,000
Limited
Bank of America 6,461,538.46 $9,000,000 $0 $40,500,000 $10,500,000
National Trust Savings
Association, A
National Banking
Association
The Bank of Tokyo- 6,461,538.46 $4,500,000 $0 $20,250,000 $5,250,000
Mitsubishi, Ltd.,
Chicago Branch
Banque Nationale de 4,615,384.62 $3,750,000 $0 $16,875,000 $4,375,000
Paris
Credit Suisse First 4,615,384.62 $6,750,000 $0 $30,375,000 $7,875,000
Boston
Royal Bank of Canada 4,615,384.62 $9,000,000 $0 $40,500,000 $10,500,000
Xxxxx Xxx Commercial 3,461,538.46 $2,250,000 $0 $10,125,000 $2,625,000
Bank, Ltd., New York
Branch
Christiania Bank og 3,461,538.46 $3,000,000 $0 $13,500,000 $3,500,000
Kreditkasse ASA, New
York Branch
The Dai-Ichi Kangyo 3,461,538.46 $2,250,000 $0 $10,125,000 $2,625,000
Bank, Ltd., Chicago
Branch
SCHEDULE I
Page 2
Outstanding Supplemental
Outstanding Existing Term Loan Existing Revolving Basic Revolving Loan Revolving Loan
Bank Term Loans Commitment Loans Commitment Commitment
---- -------------------- ------------ ------------------ -------------------- --------------
The Sumitomo Bank,
Limited, Chicago 3,461,538.46 $2,250,000 $0 $10,125,000 $2,625,000
Branch
CIBC Inc,* $0 $3,750,000 $0 $16,875,000 $4,375,000
Xxxxx Xxxx Bank Co., $0 $1,500,000 $0 $6,750,000 $1,750,000
Ltd., New York Agency*
Sumitomo Trust and $0 $3,750,000 $0 $16,875,000 $4,375,000
Banking Co., Ltd.,
Los Angeles Agency*
$150,000,000.00 $0 $675,000,000.00 $175,000,000.00
--------------- -- --------------- ---------------
--------------- -- --------------- ---------------
_________________ *
*Denotes new bank
-2-
SCHEDULE II
BANK ADDRESSES
ABN AMRO N.V., Chicago Branch 000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Lukes Van Der Hoef
Tel: (000) 000-0000
Fax: (000) 000-0000
Copy To:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Bank of America National Trust & 000 Xxxxx XxXxxxx Xxxxxx
Savings Association, A National Xxxxxxx, XX 00000
Banking Association Attn: Xxxxxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Bankers Trust Company 000 Xxxxx Xxxxxx Xxxxx,
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
000 Xxxxx Xxxxxx Xxxxx,
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Banque Nationale de Paris 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
SCHEDULE II
Page 2
Attn: Jo Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
000 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 0000
Attn: Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxxx Xxx Commercial Bank, Ltd. One World Trade Center
New York Branch Suite 3211
New York, New York 10048
Attn: Teddy Mou
Tel: (000) 000-0000
Fax: (000) 000-0000
The Chase Manhattan Bank 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Copy To:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxxx Xxxx Bank Co. One World Financial Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Christiania Bank OG Kreditkasse, ASA 00 Xxxx 00xx Xxxxxx
Xxx Xxxx Branck 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxx/Xxxx Hatleskog
Tel: (000) 000-0000
Fax (000) 000-0000
-2-
SCHEDULE II
Page 3
CIBC Inc. 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Zaluckjy
Tel: (000) 000-0000
Fax: (000) 000-0000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Copy to:
2 Paces West
0000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Citicorp USA, Inc. 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Copy To:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Portfolio Management
Tel: (000) 000-0000
Fax: (000) 000-0000
Credit Lyonnais 1301 Avenue of the Americas
Xxx Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
-3-
SCHEDULE II
Page 4
1301 Avenue of the Americas
New York, New York 10019-6002
Attn: Xxxxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Credit Suisse First Boston 11 Madison Avenue,
19th Floor
New York, New York 10010
Attn: Xxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
The Dai-Ichi Kangyo Bank, Ltd., 00 Xxxxx Xxxxxx Xxxxx
Xxxxxx Branch 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
00 Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
First Bank National Association 000 Xxxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Xxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
The Fuji Bank, Limited 000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxx
Tel: (000) 000-0000
Fax: (312) 621-539
Copy To:
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
-4-
SCHEDULE II
Page 5
Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
The Bank of Tokyo-Mitsubishi, Ltd. 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx Branch Suite 2300
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000/4533
Copy To:
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx X. Xxxxxx XX
Tel: (000) 000-0000
Fax: (000) 000-0000/4533
The Mitsubishi Trust and Banking 000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx Branch Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Copy To:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Hisakata Isomura
Tel: (000) 000-0000
Fax: (000) 000-0000
National Westminister Bank PLC 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Copy To:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
-5-
SCHEDULE II
Page 6
Attn: Xxxxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Royal Bank of Canada Grand Cayman (North America
No. 1) Branch
c/o New York Branch
Financial Square, 23rd Floor
00 Xxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Manager, Credit Admin.
Tel: (000) 000-0000
Fax: (000) 000-0000
For Competitive Bid Loan Matters:
Financial Square, 23rd Floor
00 Xxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Copy To:
Financial Square, 24th Floor
00 Xxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: X.X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
The Sakura Bank, Ltd. 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Copy To:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
-6-
SCHEDULE II
Page 7
The Sanwa Bank, Limited 00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
The Sumitomo Bank, Limited, Chicago 000 Xxxxx Xxxxxx Xxxxx
Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Copy To:
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
The Sumitomo Trust and Banking Co., 000 Xxxxx Xxxxx Xxxxxx
Ltd., Los Angeles Agency Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxx
Tel: (000) 000-0000
Fax: (000) 000-0000
-7-
SCHEDULE III
EXISTING LETTERS OF CREDIT
[See attached.]
SCHEDULE IV
SUBSIDIARIES
(wholly-owned unless otherwise specified)
Northwest Airlines Corporation (Delaware corporation)
NWA, Inc. (Delaware corporation)
Northwest Airlines, Inc. (Minnesota corporation)
NWA Fuel Services Corporation (Texas corporation)
Montana Enterprises, Inc. (Montana corporation)
Tomisato Shoji Hotel Business (Japanese corporation)
Republic Airlines, Inc. (Delaware corporation)*
Compass 315 LTD, Holding Company (U.K. corporation)
Tullion Limited (U.K. corporation)
Win-Win L.P. (Delaware limited partnership)**
NWA Worldclub, Inc. (Wisconsin corporation)
NWA Equity Holdings, Inc. (Texas corporation)
Wings Finance Company (Japanese corporation)
World Capital Management, Inc. (Minnesota corporation)
Northwest Aircraft Inc. (Delaware corporation)
Aircraft Foreign Sales, Inc. (U.S. Virgin Islands
corporation)
Northwest Aerospace Training Corporation (Delaware corporation)
MLT Inc. (Minnesota corporation)
NWA Retail Sales Inc. (Minnesota corporation)
NWA Aircraft Finance, Inc. (Delaware corporation)
Northwest Capital Funding Corp. (Delaware corporation)
Cardinal Insurance Company (Cayman) LTD. (Cayman Islands
corporation)
Northwest PARS Holdings, Inc. (Delaware corporation)
Northwest PARS, Inc. (Delaware corporation)
NWA Leasing Inc. (Minnesota corporation)
Express Airlines I, Inc.
Phoenix Airline Services, Inc.
* Inactive
** Northwest Airlines, Inc. is 99% limited partner.
SCHEDULE V
EXISTING INDEBTEDNESS
[See Attached]
POOL ASSETS
[See attached.]
