Exhibit 10.7
Execution Copy
$2,000,000,000 Five-Year Revolving Credit Agreement
dated as of
October 15, 2004
among
INTERNATIONAL LEASE FINANCE CORPORATION,
THE BANKS (as defined herein)
and
CITICORP USA, INC.,
as Administrative Agent
BANK OF AMERICA, N.A.,
CREDIT SUISSE FIRST BOSTON,
JPMORGAN CHASE BANK,
and
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND,
as Co-Syndication Agents
CITIGROUP GLOBAL MARKETS INC.,
as Sole Lead Arranger and Book Manager
TABLE OF CONTENTS
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SECTION 1. CERTAIN DEFINITIONS........................................................................ 1
Section 1.1. Terms Generally................................................................. 1
Section 1.2. Specific Terms.................................................................. 1
SECTION 2. BID LOANS AND BID NOTES.................................................................... 11
Section 2.1. Making of Bid Loans............................................................. 11
Section 2.2. Procedure for Bid Loans......................................................... 12
Section 2.3. Funding of Bid Loans............................................................ 14
SECTION 3. COMMITTED LOANS AND NOTES.................................................................. 14
Section 3.1. Agreement to Make Committed Loans............................................... 14
Section 3.2. Procedure for Committed Loans................................................... 14
Section 3.3. Maturity of Committed Loans..................................................... 15
SECTION 4. INTEREST AND FEES.......................................................................... 16
Section 4.1. Interest Rates.................................................................. 16
Section 4.2. Interest Payment Dates.......................................................... 16
Section 4.3. Setting and Notice of Committed Loan Rates...................................... 16
Section 4.4. Facility Fee.................................................................... 17
Section 4.5. Utilization Fee................................................................. 17
Section 4.6. Agent's Fees.................................................................... 17
Section 4.7. Computation of Interest and Fees................................................ 17
SECTION 5. REDUCTION OR TERMINATION OF THE COMMITMENTS; REPAYMENT; PREPAYMENTS........................ 18
Section 5.1. Voluntary Termination or Reduction of the Commitments........................... 18
Section 5.2. Voluntary Prepayments........................................................... 18
SECTION 6. MAKING AND PRORATION OF PAYMENTS; SET-OFF; TAXES........................................... 18
Section 6.1. Making of Payments.............................................................. 18
Section 6.2. Pro Rata Treatment; Sharing..................................................... 19
Section 6.3. Set-off......................................................................... 20
Section 6.4. Taxes, etc...................................................................... 20
SECTION 7. INCREASED COSTS AND SPECIAL PROVISIONS FOR ABSOLUTE RATE LOANS AND LIBOR RATE LOANS........ 23
Section 7.1. Increased Costs................................................................. 23
Section 7.2. Basis for Determining Interest Rate Inadequate or Unfair........................ 24
Section 7.3. Changes in Law Rendering Certain Loans Unlawful................................. 25
Section 7.4. Funding Losses.................................................................. 25
Section 7.5. Discretion of Banks as to Manner of Funding..................................... 25
Section 7.6. Conclusiveness of Statements; Survival of Provisions............................ 26
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SECTION 8. REPRESENTATIONS AND WARRANTIES............................................................. 26
Section 8.1. Organization, etc............................................................... 26
Section 8.2. Authorization; Consents; No Conflict............................................ 26
Section 8.3. Validity and Binding Nature..................................................... 27
Section 8.4. Financial Statements............................................................ 27
Section 8.5. Litigation and Contingent Liabilities........................................... 27
Section 8.6. Employee Benefit Plans.......................................................... 27
Section 8.7. Investment Company Act.......................................................... 27
Section 8.8. Public Utility Holding Company Act.............................................. 28
Section 8.9. Regulation U.................................................................... 28
Section 8.10. Information.................................................................... 28
Section 8.11. Compliance with Applicable Laws, etc........................................... 28
Section 8.12. Insurance...................................................................... 28
Section 8.13. Taxes.......................................................................... 28
Section 8.14. Use of Proceeds................................................................ 29
Section 8.15. Pari Passu..................................................................... 29
SECTION 9. COVENANTS.................................................................................. 29
Section 9.1. Reports, Certificates and Other Information..................................... 29
Section 9.2. Existence....................................................................... 30
Section 9.3. Nature of Business.............................................................. 31
Section 9.4. Books, Records and Access....................................................... 31
Section 9.5. Insurance....................................................................... 31
Section 9.6. Repair.......................................................................... 31
Section 9.7. Taxes........................................................................... 31
Section 9.8. Compliance...................................................................... 31
Section 9.9. Sale of Assets.................................................................. 32
Section 9.10. Consolidated Indebtedness to Consolidated
Tangible Net Worth Ratio.................................................... 32
Section 9.11. Fixed Charge Coverage Ratio.................................................... 32
Section 9.12. Consolidated Tangible Net Worth................................................ 32
Section 9.13. Restricted Payments............................................................ 32
Section 9.14. Liens.......................................................................... 32
Section 9.15. Use of Proceeds................................................................ 34
SECTION 10. CONDITIONS TO LENDING..................................................................... 34
Section 10.1. Conditions Precedent to All Loans.............................................. 34
Section 10.2. Conditions to the Availability of the Commitments.............................. 35
SECTION 11. EVENTS OF DEFAULT AND THEIR EFFECT........................................................ 36
Section 11.1. Events of Default.............................................................. 36
Section 11.2. Effect of Event of Default..................................................... 38
SECTION 12. THE AGENT................................................................................. 38
Section 12.1. Authorization.................................................................. 38
Section 12.2. Indemnification................................................................ 39
Section 12.3. Action on Instructions of the Required Banks................................... 39
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Section 12.4. Payments....................................................................... 39
Section 12.5. Exculpation.................................................................... 40
Section 12.6. Credit Investigation........................................................... 41
Section 12.7. CUSA and Affiliates............................................................ 41
Section 12.8. Resignation.................................................................... 41
Section 12.9. The Register; the Notes........................................................ 42
SECTION 13. GENERAL................................................................................... 42
Section 13.1. Waiver; Amendments............................................................. 42
Section 13.2. Notices........................................................................ 43
Section 13.3. Computations................................................................... 45
Section 13.4. Assignments; Participations.................................................... 45
Section 13.5. Costs, Expenses and Taxes...................................................... 48
Section 13.6. Indemnification................................................................ 49
Section 13.7. Regulation U................................................................... 49
Section 13.8. Extension of Termination Dates; Removal of Banks;
Substitution of Banks....................................................... 49
Section 13.9. Captions....................................................................... 51
Section 13.10. Governing Law; Severability................................................... 52
Section 13.11. Counterparts; Effectiveness................................................... 52
Section 13.12. Further Assurances............................................................ 52
Section 13.13. Successors and Assigns........................................................ 52
Section 13.14. Waiver of Jury Trial.......................................................... 52
Section 13.15. No Fiduciary Relationship..................................................... 52
Section 13.16. USA PATRIOT Act............................................................... 53
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SCHEDULES AND EXHIBITS
Schedule I Schedule of Banks (Sections 1.2, 3.1 and 13.8)
Schedule II Fees and Margins (Sections 1.2, 4.4, 4.5 and 4.6)
Schedule III Address for Notices (Section 13.2)
Exhibit A Form of Notice of Competitive Bid Borrowing (Sections 1.2 and 2.2)
Exhibit B Form of Bid (Sections 1.2 and 2.2)
Exhibit C Form of Committed Loan Request (Sections 1.2 and 3.2)
Exhibit D Form of Bid Note (Sections 1.2 and 2.4)
Exhibit E Form of Committed Note (Sections 1.2 and 3.4)
Exhibit F Fixed Charge Coverage Ratio 12/31/03 (Sections 1.2 and 9.11)
Exhibit G Form of Opinion of Counsel for the Company (Section 10.2.5)
Exhibit H Form of Opinion of the General Counsel of the Company (Section 10.2.5)
Exhibit I Form of Assignment and Assumption Agreement (Section 13.4.1)
Exhibit J Form of Request for Extension of Termination Date (Section 13.8
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FIVE-YEAR REVOLVING CREDIT AGREEMENT
FIVE-YEAR REVOLVING CREDIT AGREEMENT (this "Agreement"), dated as of
October 15, 2004, among INTERNATIONAL LEASE FINANCE CORPORATION, a California
corporation (herein called the "Company"), the financial institutions listed on
the signature pages hereof (herein, together with their respective successors
and assigns, collectively called the "Banks" and individually each called a
"Bank") and CITICORP USA, INC. (herein, in its individual corporate capacity,
together with its successors and assigns, called "CUSA"), as administrative
agent for the Banks (herein, in such capacity, together with its successors and
assigns in such capacity, called the "Agent").
W I T N E S S E T H:
WHEREAS, the Company has requested the Banks to lend up to
$2,000,000,000 to the Company on a five year revolving basis for general
corporate purposes;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
Section 1.1. Terms Generally. The definitions ascribed to terms in
this Section 1 and elsewhere in this Agreement shall apply equally
to both the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The words "hereby", "herein", "hereof",
"hereunder" and words of similar import refer to this Agreement as a
whole (including any exhibits and schedules hereto) and not merely
to the specific section, paragraph or clause in which such word
appears. All references herein to Sections, Exhibits and Schedules
shall be deemed references to Sections of and Exhibits and Schedules
to this Agreement unless the context shall otherwise require.
Section 1.2. Specific Terms. When used herein, the following terms
shall have the following meanings:
"Absolute Rate" means a rate of interest per annum, expressed as a
percentage to four decimal places and set forth in a Bid for a particular Bid
Loan amount and a particular Loan Period.
"Absolute Rate Loan" means any Loan which bears interest at an
Absolute Rate.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such Person. A Person shall be deemed to control another
Person if such first Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of such other
Person, whether through ownership of stock, by contract or otherwise.
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"Agent" - see Preamble.
"Aggregate Commitment" means $2,000,000,000, as reduced by any
reduction in the Commitments made from time to time pursuant to Section 5.1 or
Section 13.8.
"Agreement" - see Preamble.
"AIG" means American International Group, Inc., a Delaware
corporation.
"Assignee" - see Section 13.4.1.
"Authorized Officer" of the Company means any of the Chairman of the
Board, the President, the Vice Chair and Chief Financial Officer, the Treasurer,
the Controller and the Assistant Controller of the Company.
"Available Commitment" - see Section 2.2(a).
"Bank" - see Preamble.
"Bank Parties" - see Section 13.6.
"Base LIBOR" means, with respect to any Loan Period for a LIBOR Rate
Loan, (a) the rate per annum for Dollar deposits approximately equal to the
principal amount of the LIBOR Rate Loans for which LIBOR is being determined and
with maturities comparable to the Loan Period for which such rate would apply,
which appears on the Telerate Page 3750 (the "Telerate Page") at approximately
11:00 A.M., London time, on the day that is two Business Days prior to the first
day of such Loan Period and (b) if no such rate so appears on the Telerate Page
3750, the rate per annum determined by the Agent to be the arithmetic mean
(rounded to the nearest 1/100 of 1% or, if there is no nearest 1/100 of 1%, to
the next higher 1/100 of 1%) of the respective rates of interest communicated by
the Reference Banks to the Agent as the rate at which Dollar deposits are
offered to the Reference Banks by leading banks in the London interbank deposit
market at approximately 11:00 a.m., London time, on the second full Business Day
preceding the first day of such Loan Period in an amount substantially equal to
the amount of such LIBOR Rate Loan for such Reference Banks and for a period
equal to such Loan Period.
"Base Rate" means a fluctuating interest rate per annum, as shall be
in effect from time to time, which rate per annum shall on any day be equal to
the higher of, (a) the rate of interest announced publicly by Citibank, N.A. in
New York, New York, from time to time, as Citibank, N.A.'s base rate; and (b)
the Federal Funds Rate for such day plus 1/2 of 1% per annum.
"Base Rate Loan" means any Loan which bears interest at the Base
Rate.
"Bid" means one or more offers by a Bank to make one or more Bid
Loans, submitted to the Agent by telephone no later than the Submission Deadline
and promptly
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confirmed in writing on the same day on a duly completed and executed form
substantially similar to Exhibit B, personally delivered or transmitted by
facsimile to the Agent.
"Bid Borrowing" - see Section 2.2(a).
"Bid Loan" means a Loan in Dollars that is an Absolute Rate Loan or
a LIBOR Rate Loan made pursuant to Section 2.
"Bid Note" means a promissory note of the Company, substantially in
the form of Exhibit D, duly completed, evidencing Bid Loans made to the Company,
as such note may be amended, modified or supplemented or supplanted pursuant to
Section 13.4.1 from time to time.
"Business Day" means any day of the year on which banks are open for
commercial banking business in the City of New York and Los Angeles and, if the
applicable Business Day relates to the determination of LIBOR for any LIBOR Rate
Loan, any such Business Day on which dealings in deposits in Dollars are
transacted in the London interbank market.
"Capitalized Lease" means any lease under which any obligations of
the lessee are, or are required to be, capitalized on a balance sheet of the
lessee in accordance with generally accepted accounting principles in the United
States of America.
"Capitalized Rentals" means, as of the date of any determination,
the amount at which the obligations of the lessee, due and to become due under
all Capitalized Leases under which the Company or any Subsidiary is a lessee,
are reflected as a liability on a consolidated balance sheet of the Company and
its Subsidiaries.
"Closing Date" - see Section 10.2.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitments" means the Banks' commitments to make Committed Loans
hereunder; and "Commitment" as to any Bank means the amount set forth opposite
such Bank's name on Schedule I (as reduced in accordance with Section 5.1, or as
periodically revised in accordance with Section 13.4 or Section 13.8).
"Committed Loan" means a Loan in Dollars that is a Base Rate Loan or
LIBOR Rate Loan made pursuant to Section 3.
"Committed Loan Request" - see Section 3.2(a).
"Committed Note" means a promissory note of the Company,
substantially in the form of Exhibit E, duly completed, evidencing Committed
Loans to the Company, as such note may be amended, modified or supplemented or
supplanted pursuant to Section 13.4.1 from time to time.
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"Company" - see Preamble.
"Consolidated Indebtedness" means, as of the date of any
determination, the total amount of Indebtedness less the amount of current and
deferred income taxes and rentals received in advance of the Company and its
Subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles in the United States of America, and excluding
adjustments in relation to Indebtedness denominated in any currency other than
Dollars and any related derivative liability, in each case to the extent arising
from currency fluctuations (such exclusions to apply only to the extent the
resulting liability is hedged by the Company or such Subsidiary).
"Consolidated Tangible Net Assets" means, as of the date of any
determination, the total amount of assets (less depreciation and valuation
reserves and other reserves and items deductible from the gross book value of
specific asset amounts under generally accepted accounting principles) which
under generally accepted accounting principles would be included on a balance
sheet of the Company and its Subsidiaries, after deducting therefrom (i) all
liability items except Indebtedness (whether incurred, assumed or guaranteed)
for borrowed money maturing by its terms more than one year from the date of
creation thereof or which is extendible or renewable at the sole option of the
obligor in such manner that it may become payable more than one year from the
date of creation thereof, shareholder's equity and reserves for deferred income
taxes and (ii) all good will, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, which in each case would be so
included on such balance sheet.
"Consolidated Tangible Net Worth" means, as of the date of any
determination, the total of shareholders' equity (including capital stock,
additional paid-in capital and retained earnings after deducting treasury
stock), less the sum of the total amount of goodwill, organization expenses,
unamortized debt issue costs (determined on an after-tax basis), deferred assets
other than prepaid insurance and prepaid taxes, the excess of cost of shares
acquired over book value of related assets, surplus resulting from any
revaluation write-up of assets subsequent to December 31, 2002 and such other
assets as are properly classified as intangible assets, all determined in
accordance with generally accepted accounting principles in the United States of
America consolidating the Company and its Subsidiaries.
"Covered Taxes" means all Taxes, including all liabilities
(including, without limitation, any penalties, interest and other additions to
tax) with respect thereto, other than the following Taxes, including all
liabilities (including, without limitation, any penalties, interest and other
additions to tax) with respect thereto: (i) Taxes imposed on the net income or
capital of the Agent, a Bank, Assignee or Participant under this Agreement and
franchise taxes imposed in lieu thereof (including without limitation branch
profits taxes, minimum taxes and taxes computed under alternative methods, at
least one of which is based on net income (collectively referred to as "net
income taxes")) by (A) the jurisdiction under the laws of which such Agent,
Bank, Assignee or Participant under this Agreement is organized or resident for
tax purposes or any political subdivision thereof or (B) the jurisdiction of
such Agent, Bank, Assignee or Participant's applicable lending office or any
political subdivision thereof or (C) any jurisdiction with which such Agent,
Bank, Assignee or Participant has any present or former connection
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(other than solely by virtue of being a Bank under this Agreement), (ii) any
Taxes to the extent that they are in effect and would apply to a payment to such
Agent, Bank, Assignee or Participant as of the date of a change in the
jurisdiction of such Agent, Bank, Assignee or Participant's applicable lending
office or (iii) any Taxes that would not have been imposed but for (A) the
failure or unreasonable delay by such Agent, Bank, Assignee or Participant, as
applicable, to complete, provide, or file and update or renew, any application
forms, certificates, documents or other evidence required from time to time,
properly completed and duly executed, to qualify for any applicable exemption
from or reduction of Taxes, including, without limitation, the certificates,
documents or other evidence required under Sections 6.4(b), 6.4(c) and 6.4(e)
(unless such failure or delay results from a change in applicable law after the
Closing Date or the date of the applicable agreement pursuant to which such
Assignee or Participant, as the case may be, acquires an interest under this
Agreement, which precludes such Agent, Bank, Assignee or Participant, as
applicable, from qualifying for such exemption or reduction) or (B) the gross
negligence or willful misconduct of such Agent, Bank, Assignee or Participant.
"CUSA" - see Preamble.
"Dollar", and $, refer to the lawful money of the United States of
America.
"ECA Financing" means any subsidized financing of the acquisition of
Airbus Industrie aircraft, the repayment obligations of which will be supported
by guaranties issued by certain European government export credit agencies (the
European Credit Agency Export Finance Program) and a Company Guaranty and a
pledge of the assets of (including any rights to or interests in any reserve or
security deposit held by) each such Wholly-owned Subsidiary.
"Eligible Assignee" means (i) any Bank, and any Affiliate of any
Bank and (ii)(a) a commercial bank organized under the laws of the United States
or any state thereof, (b) a savings and loan association or savings bank
organized under the laws of the United States or any state thereof, (c) a
commercial bank organized under the laws of any other country or a political
subdivision thereof; provided that (1) such bank is acting through a branch or
agency located in the United States or (2) such bank organized under the laws of
a country that is a member of the Organization for Economic Cooperation and
Development or a political subdivision of such country and (d) a finance
company, insurance company, mutual fund, leasing company or other financial
institution or fund (whether a corporation, partnership or other entity) which
is engaged in making, purchasing or otherwise investing in commercial loans in
the ordinary course of its business, and having total assets in excess of
$150,000,000.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"ERISA Affiliate" means any corporation, trade or business that is,
along with the Company or any Subsidiary, a member of a controlled group of
corporations or a controlled group of trades or businesses, as described in
sections 414(b) and 414(c), respectively, of the Code or Section 4001 of ERISA.
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"Eurodollar Reserve Percentage" means for any day in any Loan Period
for any LIBOR Rate Loan that percentage in effect on such day as prescribed by
the Board of Governors of the Federal Reserve System (or any successor thereto)
or other U.S. government agency for determining the reserve requirement
(including, without limitation, any marginal, basic, supplemental or emergency
reserves) for a member bank of the Federal Reserve System in New York City with
deposits exceeding one billion dollars in respect of eurocurrency funding
liabilities. LIBOR shall be adjusted automatically on and as of the effective
date of any change in the Eurodollar Reserve Percentage.
"Event of Default" means any of the events described in Section
11.1.
"Eximbank" means the Export-Import Bank of the United States.
"Existing Litigation" - see Section 10.1.3.
"FASB 13" means the Statement of Financial Accounting Standards No.
13 (Accounting for Leases) as in effect on the date hereof.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Charge Coverage Ratio" on the last day of any quarter of any
fiscal year of the Company means the ratio for the period of four fiscal
quarters ending on such day of earnings to combined fixed charges and preferred
stock dividends referred to in Paragraph (d)(1) of Item 503 of Regulation S-K of
the Securities and Exchange Commission, as amended from time to time, and
determined pursuant to Instructions to paragraph 503(d) of such Item 503 with
the Company as "registrant" (such ratio for the four fiscal quarters ended
December 31, 2003 is attached hereto as Exhibit F); provided, however, that if
the Required Banks in their reasonable discretion determine that amendments to
Regulation S-K subsequent to the date hereof substantially modify the provisions
of such Item 503, "Fixed Charge Coverage Ratio" shall have the meaning
determined by this definition without regard to any such amendments.
"Funding Date" means the date on which any Loan is scheduled to be
disbursed.
"Funding Office" means, with respect to any Bank, any office or
offices of such Bank or Affiliate or Affiliates of such Bank through which such
Bank shall fund or shall have funded any Loan. A Funding Office may be, at such
Bank's option, either a domestic or foreign office of such Bank or a domestic or
foreign office of an Affiliate of such Bank.
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"Governmental Authority" means any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guaranties" by any Person means, without duplication, all
obligations (other than endorsements in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person guaranteeing or
in effect guaranteeing any Indebtedness, dividend or other obligation of any
other Person (the "Primary Obligor") in any manner, whether directly or
indirectly, including, without limitation, all obligations incurred through an
agreement, contingent or otherwise, by such Person: (a) to purchase such
Indebtedness or obligation or any property or assets constituting security
therefor, (b) to advance or supply funds (i) for the purchase or payment of such
Indebtedness or obligation or (ii) to maintain working capital or other balance
sheet condition or otherwise to advance or make available funds for the purchase
or payment of such Indebtedness or obligation, (c) to lease property or to
purchase securities or other property or services primarily for the purpose of
assuring the owner of such Indebtedness or obligation of the ability of the
Primary Obligor to make payment of the Indebtedness or obligation or (d)
otherwise to assure the owner of the Indebtedness or obligation of the Primary
Obligor against loss in respect thereof; provided, however, that the obligation
described in clause (c) shall not include (i) obligations of a buyer under an
agreement with a seller to purchase goods or services entered into in the
ordinary course of such buyer's and seller's businesses unless such agreement
requires that such buyer make payment whether or not delivery is ever made of
such goods or services and (ii) remarketing agreements where the remaining debt
on an aircraft does not exceed the aircraft's net book value, determined in
accordance with industry standards, except that clause (c) shall apply to the
amount of remaining debt under a remarketing agreement that exceeds the net book
value of the aircraft. For the purposes of all computations made under this
Agreement, a Guaranty in respect of any Indebtedness for borrowed money shall be
deemed to be Indebtedness equal to the principal amount of such Indebtedness for
borrowed money which has been guaranteed, and a Guaranty in respect of any other
obligation or liability or any dividend shall be deemed to be Indebtedness equal
to the maximum aggregate amount of such obligation, liability or dividend.
"Indebtedness" of any Person means and includes, without
duplication, all obligations of such Person which in accordance with generally
accepted accounting principles in the United States of America shall be
classified upon a balance sheet of such Person as liabilities of such Person,
and in any event shall include all:
(a) obligations of such Person for borrowed money or which have been
incurred in connection with the acquisition of property or assets (other
than security and other deposits on flight equipment),
(b) obligations secured by any Lien or other charge upon property or
assets owned by such Person, even though such Person has not assumed or
become liable for the payment of such obligations,
(c) obligations created or arising under any conditional sale, or
other title retention agreement with respect to property acquired by such
Person, notwithstanding
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the fact that the rights and remedies of the seller, lender or lessor
under such agreement in the event of default are limited to repossession
or sale of property,
(d) Capitalized Rentals of such Person under any Capitalized Lease,
(e) obligations evidenced by bonds, debentures, notes or other
similar instruments, and
(f) Guaranties by such Person, to the extent required pursuant to
the definition thereof.
"Indemnified Liabilities" - see Section 13.6.
"LIBOR" means, with respect to any Loan Period the rate per annum
(rounded to the nearest 1/100 of 1% or, if there is no nearest 1/100 of 1%, to
the next higher 1/100 of 1%), determined pursuant to the following formula:
LIBOR= Base LIBOR
-----------------------------------
(1 - Eurodollar Reserve Percentage)
"LIBOR Rate" means (i) with respect to Committed Loans that are
LIBOR Rate Loans, LIBOR plus the applicable rate margin set forth for LIBOR Rate
Loans in the row entitled "Margins" on Schedule II and (ii) with respect to Bid
Loans that are LIBOR Rate Loans, LIBOR plus or minus the rate margin set forth
in a Bid for a particular Bid Loan amount and a particular Loan Period.
"LIBOR Rate Loan" means any Loan which bears interest at a LIBOR
Rate.
"Lien" means any mortgage, pledge, lien, security interest or other
charge, encumbrance or preferential arrangement, including the retained security
title of a conditional vendor or lessor. For avoidance of doubt, the parties
hereto acknowledge that the filing of a financing statement under the Uniform
Commercial Code does not, in and of itself, give rise to a Lien.
"Litigation Actions" means all litigation, claims and arbitration
proceedings, proceedings before any Governmental Authority or investigations
which are pending or, to the knowledge of the Company, threatened against, or
affecting, the Company or any Subsidiary.
"Loan Period" means (i) with respect to any Absolute Rate Loan, the
period commencing on such Loan's Funding Date and ending not less than 14 days
thereafter nor more than 6 months thereafter as specified in the Bid Loan
Request related to such Bid Loan and (ii) with respect to any LIBOR Rate Loan,
the period commencing on such Loan's Funding Date and ending 1, 2, 3 or 6 months
thereafter as selected by the Company pursuant to Section 3.2(a) or specified in
the Notice of Competitive Bid Borrowing, as the case may be; provided, however,
that:
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(a) if a Loan Period would otherwise end on a day which is not a
Business Day, such Loan Period shall end on the next succeeding Business
Day (unless, in the case of a LIBOR Rate Loan, such next succeeding
Business Day would fall in the next succeeding calendar month, in which
case such Loan Period shall end on the next preceding Business Day),
(b) in the case of a Loan Period for any LIBOR Rate Loan, if there
exists no day numerically corresponding to the day such Loan was made in
the month in which the last day of such Loan Period would otherwise fall,
such Loan Period shall end on the last Business Day of such month, and
(c) on the date of the making of any Loan by a Bank, the Loan Period
for such Loan shall not extend beyond the then-scheduled Termination Date
for such Bank.
"Loans" means, collectively, the Bid Loans and the Committed Loans
and, individually, any Bid Loan or Committed Loan.
"Material Adverse Effect" means (i) any material adverse effect on
the business, properties, condition (financial or otherwise) or operations of
the Company and its Subsidiaries, taken as a whole since any stated reference
date or from and after the date of determination, as the case may be, (ii) any
material adverse effect on the ability of the Company to perform its material
obligations hereunder and under the Notes or (iii) any material adverse effect
on the legality, validity, binding effect or enforceability of any material
provision of this Agreement or any Note.
"Multiemployer Plan" has the meaning assigned to such term in
Section 3(37) of ERISA.
"New Litigation" - see Section 10.1.3.
"Notes" means, collectively, the Bid Notes and the Committed Notes;
and "Note" means any individual Bid Note or Committed Note.
"Notice of Competitive Bid Borrowing" - see Section 2.2(a).
"Notice Office" means the office of CUSA which, as of the date
hereof, is located at 0 Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, XX 00000, Telecopy
Number 000-000-0000; Telephone 000-000-0000.
"Participant" - see Section 13.4.2.
"Payment Office" means the office of the Agent which, as of the date
hereof, is at 0 Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, XX 00000, Account Number:
00000000.
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"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Percentage" means as to any Bank the ratio, expressed as a
percentage, that such Bank's Commitment as set forth opposite such Bank's name
on Schedule I, as periodically revised in accordance with Section 13.4 or 13.8,
bears to the Aggregate Commitment or, if the Commitments have been terminated,
the ratio, expressed as a percentage, that the aggregate principal amount of
such Bank's outstanding Loans bears to the aggregate principal amount of all
outstanding Loans.
"Person" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
government (or an agency or political subdivision thereof) or other entity of
any kind.
"Plan" means, at any date, any employee pension benefit plan (as
defined in section 3(2) of ERISA) which is subject to Title IV of ERISA (other
than a Multiemployer Plan) and to which the Company or any ERISA Affiliate may
have any liability, including any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.
"Reference Banks" means Citibank, N.A., Bank of America, N.A. and
The Governor and Company of the Bank of Scotland.
"Reportable Event" means an event described in Section 4043(c) of
ERISA with respect to a Plan other than those events as to which the 30-day
notice period is waived under subsection .22, .23, .25, .27 or .28 of PBGC
Regulation Section 4043.
"Required Banks" means Banks having an aggregate Percentage of 51%
or more.
"Significant Subsidiary" means any Subsidiary which is so defined
pursuant to Rule 1-02 of Regulation S-X promulgated by the Securities and
Exchange Commission.
"Submission Deadline" - see Section 2.2(b).
"Subsidiary" means any Person of which or in which the Company and
its other Subsidiaries own directly or indirectly 50% or more of:
(a) the combined voting power of all classes of stock having general
voting power under ordinary circumstances to elect a majority of the board
of directors of such Person, if it is a corporation,
(b) the capital interest or profits interest of such Person, if it
is a partnership, joint venture or similar entity, or
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(c) the beneficial interest of such Person, if it is a trust,
association or other unincorporated organization.
"Successor Bank" - see Section 13.8(c).
"Taxes" with respect to any Person means income, excise and other
taxes, and all assessments, imposts, duties and other governmental charges or
levies, imposed upon such Person, its income or any of its properties,
franchises or assets by any Governmental Authority.
"Telerate Page" -
see "Base LIBOR".
"Terminating Bank" - see Section 13.8(c).
"Termination Date" means, with respect to any Bank, the earliest to
occur of (i) October 15, 2009 or such later date as may be agreed to by such
Bank pursuant to Section 13.8(a), or if such day is not a Business Day, the next
preceding Business Day, (ii) the date on which the Commitments shall terminate
pursuant to Section 11.2 or the Commitments shall be reduced to zero pursuant to
Section 5.1 and (iii) the date specified as such Bank's Termination Date
pursuant to Section 13.8(b), or, if such day is not a Business Day, the next
preceding Business Day; in all cases, subject to the provisions of Section
13.8(d).
"Unmatured Event of Default" means any event which if it continues
uncured will, with lapse of time or notice or lapse of time and notice,
constitute an Event of Default.
"Wholly-owned Subsidiary" means any Person of which or in which the
Company and its other Wholly-owned Subsidiaries own directly or indirectly 100%
of:
(a) the issued and outstanding shares of stock (except shares
required as directors, qualifying shares),
(b) the capital interest or profits interest of such Person, if it
is a partnership, joint venture or similar entity, or
(c) the beneficial interest of such Person, if it is a trust,
association or other unincorporated organization.
SECTION 2. BID LOANS AND BID NOTES.
Section 2.1. Making of Bid Loans. On the terms and subject to the
conditions of this Agreement, each Bank, severally and for itself
alone, may (but is not obligated to) make Bid Loans to the Company
from time to time on or after the date hereof and prior to the date
which is the fourteenth day preceding such Bank's Termination Date
in amounts equal to such Bank's Bids that have been accepted as
provided in Section 2.2(c); provided, that the aggregate principal
amount of all outstanding Loans shall not at any time exceed the
then Aggregate Commitment.
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Section 2.2. Procedure for Bid Loans.
(a) Bid Loan Request. Whenever the Company desires to incur a
competitive bid borrowing (a "Bid Borrowing"), it shall give the Agent written
notice (or telephonic notice promptly confirmed in writing), such notice to be
delivered to the Agent at its Notice Office no later than 12:00 Noon, New York
City time, at least three Business Days prior to any proposed LIBOR Rate Loan
and at least one Business Day prior to any proposed Absolute Rate Loan. Each
such notice shall be substantially in the form of Exhibit A hereto (each a
"Notice of Competitive Bid Borrowing"), and shall specify in each case (i) the
date of such proposed Bid Borrowing (which shall be a Business Day), (ii) the
aggregate amount of the proposed Bid Borrowing, (iii) whether the proposed Bid
Borrowing is to be an Absolute Rate Loan or a LIBOR Rate Loan and the Loan
Period, (iv) the maturity date for repayment of each Bid Loan to be made as part
of such borrowing (which maturity date shall not be earlier than one month after
the date of any proposed LIBOR Rate Loan or 14 days after the date of any
proposed Absolute Rate Loan nor later than the earliest to occur of (x) six
months after the date of such proposed Bid Loan, (y) the Termination Date and
(z) if the proposed Bid Loan has an interest rate that is the LIBOR Rate, the
last day of the proposed Loan Period), (v) the interest payment date or dates
relating thereto, (vi) the account to which the proceeds of such Bid Borrowing
are to be credited and (vii) any other terms to be applicable to such Bid
Borrowing. The Agent shall promptly give each Bank written notice (or telephonic
notice promptly confirmed in writing) of each such request for a Bid Borrowing
received by it from the Company. Each Notice of Competitive Bid Borrowing shall
contemplate Bid Loans in a minimum aggregate principal amount of $10,000,000 or
a higher integral multiple of $1,000,000, not to exceed, however, the excess of
the then Aggregate Commitment over the aggregate principal amount of all
outstanding Loans, calculated as of the relevant Funding Date, assuming that the
Company will pay, when due, all Loans maturing on or prior to such Funding Date
(the "Available Commitment").
(b) Bidding Procedure. Each Bank shall, if in its sole discretion it
elects to do so, irrevocably offer to make one or more Bid Loans to the Company
as part of such proposed Bid Borrowing at a rate or rates of interest specified
by such Bank in its sole discretion and determined by such Bank independently of
each other Bank, by notifying by telephone confirmed in writing to the Agent at
its Notice Office (which shall give prompt notice thereof to the Company),
before 10:00 a.m., New York City time, on the date (the "Submission Deadline")
that is (x) in the case of a proposed Absolute Rate Loan, the same day as the
date of such proposed Bid Loan and (y) in the case of a proposed LIBOR Rate
Loan, two Business Days before the date of such proposed Bid Loan. Each Bid
shall be substantially in the form of Exhibit B (each a "Bid"), and shall
specify in each case (i) the Loan Period, (ii) the minimum amount and maximum
amount of each Bid Loan that such Bank would be willing to make as part of such
proposed Bid Borrowing (which amounts may, subject to the proviso in Section
2.1, exceed such Bank's Commitment), (iii) the rate or rates of interest
therefor and (iv) such Bank's lending office with respect to such Bid Loan;
provided, that if the Agent in its capacity as a Bank shall, in its sole
discretion, elect to make any such offer, it shall notify the Company of such
offer before 8:30 a.m., New York City time, on the Submission Deadline.
(c) Acceptance of Bids. The Company shall, in turn, before 10:30
a.m., New York City time, on the Submission Deadline, either:
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(i) cancel such proposed Bid Borrowing by giving the Agent notice to
that effect, or
(ii) accept (such acceptance to be irrevocable) one or more of the
offers made by any Bank or Banks pursuant to clause (b) above by giving
notice (in writing or by telephone confirmed in writing) to the Agent of
the amount of each 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 Company by the Agent on behalf of such Bank for such Bid
Borrowing pursuant to clause (b) above) to be made by such Bank as part of
such Bid Borrowing, and reject any remaining offers made by any Bank
pursuant to clause (b) above by giving the Agent notice to that effect;
provided, that for any maturity date acceptance of offers may only be made
on the basis of ascending Absolute Rates (in the case of an Absolute Rate
Loan) or floating rates (in the case of a LIBOR Rate Loan), in each case
commencing with the lowest rate so offered and only as to offers made in
conformity with the terms hereof; provided, further, however, if offers
are made by two or more Banks at the same rate or rates and acceptance of
all such equal offers would result in a greater principal amount of Bid
Loans being accepted than the aggregate principal amount requested by the
Company, the Company shall have the right to accept one or more of 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 Company may elect in its sole discretion. The
Company may not accept offers whose aggregate principal amount is greater
than the requested aggregate amount as specified in the related Notice of
Competitive Bid Borrowing subject to the proviso in Section 2.1.
(d) Cancellation of Bid Borrowing. If the Company notifies the Agent
that such proposed Bid Borrowing is cancelled pursuant to clause (c)(i) above,
the Agent shall give prompt notice thereof to the Banks and such Bid Borrowing
shall not be made.
(e) Notification of Acceptance and Repayment. If the Company accepts
one or more of the offers made by any Bank or Banks pursuant to clause (c)(ii)
above, the Agent shall in turn promptly notify (x) each Bank that has made an
offer as described in clause (b) above, of the date and aggregate amount of such
Bid Borrowing and whether or not any offer or offers made by such Bank pursuant
to clause (b) above have been accepted by the Company and (y) each Bank that is
to make a Bid Loan as part of such Bid Borrowing, of the amount of each Bid Loan
to be made by such Bank as part of such Bid Borrowing. The Company agrees to
repay the principal amount of each Bid Loan, and pay the interest accrued
thereon, in each case in accordance with the terms bid and accepted as provided
herein and, additionally in the case of the payment of interest, in accordance
with Sections 4.1 and 4.2 hereof.
(f) Reliance. The Agent may rely and act upon notice given by
telephone by individuals reasonably believed by the Agent to be those designated
to the Agent by the Company or by any Bank in writing from time to time, without
waiting for receipt of written confirmation thereof, and the Company hereby
agrees to indemnify and hold harmless the Agent from and against any and all
losses, costs, expenses, damages, claims, actions or other proceedings relating
to such reliance.
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Section 2.3. Funding of Bid Loans. No later than 1:00 p.m., New York
City time, on the date specified in each Notice of Competitive Bid
Borrowing, each Bank will make available the Bid Loan, if any, to be
made by such Bank as part of the Bid Borrowing requested to be made
on such date in the manner provided below. All amounts shall be made
available to the Agent in Dollars and immediately available funds at
the Payment Office of the Agent and the Agent promptly will make
available to the Company at its account specified in the relevant
Notice of Competitive Bid Borrowing the aggregate of the amounts so
made available in the type of funds received. Unless the Agent shall
have been notified by any Bank which has submitted a bid pursuant to
Section 2.2(b) prior to the date of the proposed Bid Borrowing that
such Bank does not intend to make available to the Agent its
portion, if any, of the Bid Borrowing to be made on such date, the
Agent may assume that such Bank has made such amount available to
the Agent on such date of the Bid Borrowing, and the Agent, in
reliance upon such assumption, may (in its sole discretion and
without any obligation to do so) make available to the Company a
corresponding amount.
SECTION 3. COMMITTED LOANS AND NOTES.
Section 3.1. Agreement to Make Committed Loans. On the terms and
subject to the conditions of this Agreement, each Bank, severally
and for itself alone, agrees to make Loans (herein collectively
called "Committed Loans" and individually each called a "Committed
Loan") on a revolving basis from time to time from the date hereof
until such Bank's Termination Date in such Bank's Percentage of such
aggregate amounts as the Company may from time to time request as
provided in Section 3.2; provided, that (a) the aggregate principal
amount of all outstanding Committed Loans of any Bank shall not at
any time exceed the amount set forth opposite such Bank's name on
Schedule I (as reduced in accordance with Section 5.1, Section 13.4
or Section 13.8) and (b) the aggregate principal amount of all
outstanding Committed Loans of all Banks plus the aggregate
principal amount of all outstanding Bid Loans of all Banks shall not
at any time exceed the then Aggregate Commitment. Within the limits
of this Section 3.1, the Company may from time to time borrow,
prepay and reborrow Committed Loans on the terms and conditions set
forth in this Agreement.
Section 3.2. Procedure for Committed Loans.
(a) Committed Loan Requests. The Company shall give the Agent
irrevocable telephonic notice at the Notice Office (promptly confirmed in
writing on the same day), not later than 10:30 a.m., New York City time, (i) at
least three Business Days prior to the Funding Date in the case of LIBOR Rate
Loans or (ii) on the Funding Date in the case of Base Rate Loans, of each
requested Committed Loan, and the Agent shall promptly advise each Bank thereof
and, in the case of a LIBOR Rate Loan, if the Telerate Page is not available,
request each Reference Bank to notify the Agent of its applicable rate (as
contemplated in the definition of LIBOR). Each such notice to the Agent (a
"Committed Loan Request") shall be substantially in the form of Exhibit C and
shall specify (i) the Funding Date (which shall be a Business Day), (ii) the
aggregate amount of the Loans requested (in an amount permitted under clause (b)
below), (iii) whether each Loan shall be a LIBOR Rate Loan or a Base Rate Loan
and (iv) if a LIBOR Rate Loan, the Loan Period therefor (subject to the
limitations set forth in the definition of Loan Period).
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(b) Amount and Increments of Committed Loans. Each Committed Loan
Request shall contemplate Committed Loans in a minimum aggregate amount of
$10,000,000 or a higher integral multiple of $1,000,000, not to exceed in the
aggregate (for all requested Committed Loans) the Available Commitment.
(c) Funding of Committed Loans.
(i) Not later than 1:30 p.m., New York City time, on the Funding
Date of a Committed Loan, each Bank shall, subject to this Section 3.2(c),
provide the Agent at its Notice Office with immediately available funds covering
such Bank's Committed Loan (provided, that a Bank's obligation to provide funds
to the Agent shall be deemed satisfied by such Bank's delivery to the Agent at
its Notice Office not later than 1:30 p.m., New York City time, of a Federal
reserve wire confirmation number covering the proceeds of such Bank's Committed
Loan) and the Agent shall pay over such funds to the Company not later than 2:00
p.m., New York City time, on such day if the Agent shall have received the
documents required under Section 10 with respect to such Loan and the other
conditions precedent to the making of such Loan shall have been satisfied not
later than 10:00 a.m., New York City time, on such day. If the Agent does not
receive such documents or such other conditions precedent have not been
satisfied prior to such time, then (A) the Agent shall not pay over such funds
to the Company, (B) the Company's Committed Loan Request related to such Loan
shall be deemed cancelled in its entirety, (C) in the case of Committed Loan
Requests relative to LIBOR Rate Loans, the Company shall be liable to each Bank
in accordance with Section 7.4 and (D) the Agent shall return the amount
previously provided to the Agent by each Bank on the next following Business
Day.
(ii) The Company agrees, notwithstanding its previous delivery of
any documents required under Section 10 with respect to a particular Loan,
immediately to notify the Agent of any failure by it to satisfy the conditions
precedent to the making of such Loan. The Agent shall be entitled to assume,
after it has received each of the documents required under Section 10 with
respect to a particular Loan, that each of the conditions precedent to the
making of such Loan has been satisfied absent actual knowledge to the contrary
received by the Agent prior to the time of the receipt of such documents. Unless
the Agent shall have notified the Banks prior to 10:30 a.m., New York City time,
on the Funding Date of any Loan that the Agent has actual knowledge that the
conditions precedent to the making of such Loan have not been satisfied, the
Banks shall be entitled to assume that such conditions precedent have been
satisfied.
(d) Repayment of Loans. If any Bank is to make a Committed Loan
hereunder on a day on which the Company is to repay (or has elected to prepay,
pursuant to Section 5.2) all or any part of any outstanding Loan held by such
Bank, the proceeds of such new Committed Loan shall be applied to make such
repayment and only an amount equal to the positive difference, if any, between
the amount being borrowed and the amount being repaid shall be requested by the
Agent to be made available by such Bank to the Agent as provided in Section
3.2(c).
Section 3.3. Maturity of Committed Loans. Except for a Base Rate
Loan, which shall mature on the Termination Date, a Committed Loan
made by a Bank shall
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mature on the last day of the Loan Period applicable to such
Committed Loan, but in no event later than the Termination Date for
such Bank.
SECTION 4. INTEREST AND FEES.
Section 4.1. Interest Rates. The Company hereby promises to pay
interest on the unpaid principal amount of each Loan for the period
commencing on the Funding Date for such Loan until such Loan is paid
in full, as follows:
(a) if such Loan is a Bid Loan, at a rate per annum equal to the
Absolute Rate or the LIBOR Rate, as applicable, offered by the applicable Bank
and accepted by the Company for such Bid Loan;
(b) if such Loan is a Base Rate Loan, at a rate per annum equal to
the Base Rate from time to time in effect; and
(c) if such Loan is a Committed Loan that is a LIBOR Rate Loan, at a
rate per annum equal to the LIBOR Rate applicable to the Loan Period for such
Loan; provided, however, that after the maturity of any Loan (whether by
acceleration or otherwise), such Loan shall bear interest on the unpaid
principal amount thereof at a rate per annum (calculated on the basis of a
360-day year for the actual number of days involved) equal to the Base Rate from
time to time in effect (but not less than the interest rate in effect for such
Loan immediately prior to maturity) plus 1% per annum.
Section 4.2. Interest Payment Dates. Except for Base Rate Loans, as
to which accrued interest shall be payable on the last day of each
calendar quarter and on the Termination Date, accrued interest on
each Loan shall be payable in arrears on the last day of the Loan
Period therefor and (i) with respect to each LIBOR Rate Loan with a
Loan Period of six months, on the day that is three months after the
first day of such Loan Period (or, if there is no day in such third
month numerically corresponding to such first day of the Loan
Period, on the last Business Day of such month) and (ii) with
respect to each Absolute Rate Loan with a Loan Period exceeding 90
days, on the day that is 90 days after the first day of such Loan
Period. After the maturity of any Loan, accrued interest on such
Loan shall be payable on demand. If any interest payment date falls
on a day that is not a Business Day, such interest payment date
shall be postponed to the next succeeding Business Day and the
interest paid shall cover the period of postponement (except that if
the Loan is a LIBOR Rate Loan and the next succeeding Business Day
falls in the next succeeding calendar month, such interest payment
date shall be the immediately preceding Business Day).
Section 4.3. Setting and Notice of Committed Loan Rates.
(a) The applicable interest rate for each Committed Loan hereunder
shall be determined by the Agent and notice thereof shall be given by the Agent
promptly to the Company and to each Bank. Each determination of the applicable
interest rate by the Agent shall be conclusive and binding upon the parties
hereto in the absence of demonstrable error.
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(b) In the case of LIBOR Rate Loans, each Reference Bank agrees to
use its best efforts to notify the Agent in a timely fashion of its applicable
rate after the Agent's request (if any) therefor under Section 2.2(a) and
Section 3.2(a) (as contemplated in the definition of LIBOR). If as to any Loan
Period the Telerate Page is not available and any one or more of the Reference
Banks is unable or for any reason fails to notify the Agent of its applicable
rate by 11:30 a.m., New York City time, two Business Days before the Funding
Date, then the applicable LIBOR Rate shall be determined on the basis of the
rate or rates of which the Agent is given notice by the remaining Reference Bank
or Banks by such time. If the Telerate Page is not available and none of the
Reference Banks notifies the Agent of the applicable rate prior to 11:30 a.m.,
New York City time, two Business Days before the Funding Date, then (i) the
Agent shall promptly notify the other parties thereof and (ii) at the option of
the Company the Committed Loan Request delivered by the Company pursuant to
Section 3.2(a) with respect to such Funding Date shall be cancelled or shall be
deemed to have specified a Base Rate Loan.
(c) The Agent shall, upon written request of the Company or any
Bank, deliver to the Company or such Bank a statement showing the computations
used by the Agent in determining the interest rate applicable to any LIBOR Rate
Loan.
Section 4.4. Facility Fee. The Company agrees to pay to the Agent
for the accounts of the Banks pro rata in accordance with their
respective Percentages an annual facility fee computed by
multiplying the average daily amount of the Aggregate Commitment
(whether used or unused) by the applicable percentage determined
with respect to such facility fee in accordance with Schedule II
hereto. Such fee shall be payable quarterly in arrears on the last
Business Day of March, June, September and December of each year
(beginning with the last Business Day of December, 2004) until the
Commitments have expired or have been terminated and on the date of
such expiration or termination (and, in the case of any Terminating
Bank, such Bank's Termination Date), in each case for the period
then ending for which such facility fee has not previously been
paid.
Section 4.5. Utilization Fee. The Company agrees to pay to the Agent
for the accounts of the Banks pro rata in accordance with their
respective Percentages, during any period that the aggregate
outstanding principal amount of the Loans exceeds 33.33% of the
Aggregate Commitment, a utilization fee computed by multiplying the
average daily amount of the Aggregate Commitment by the applicable
percentage determined with respect to such utilization fee in
accordance with Schedule II hereto; provided, that if the then
outstanding aggregate principal amount of Bid Loans exceeds an
amount equal to 33.33% of the Aggregate Commitments as then in
effect, then in calculating the aggregate outstanding principal
amount of the Loans for purposes of this Section 4.5 only, the
aggregate outstanding principal amount of Loans shall not include an
amount equal to 33.33% of the Aggregate Commitments as then in
effect. Accrued utilization fees shall be due and payable on each
date that interest is payable on each such Loan.
Section 4.6. Agent's Fees. The Company agrees promptly to pay to the
Agent such fees as may be agreed from time to time by the Company
and the Agent.
Section 4.7. Computation of Interest and Fees. Interest on LIBOR
Rate Loans, and facility and utilization fees shall be computed for
the actual number of days
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elapsed on the basis of a 360-day year; and interest on Base Rate
Loans shall be computed for the actual number of days elapsed on the
basis of a 365/366 day year, as the case may be. The interest rate
applicable to each LIBOR Rate Loan and Base Rate Loan, and (to the
extent applicable) after the maturity of any other type of Loan, the
interest rate applicable to such Loan, shall change simultaneously
with each change in the LIBOR Rate or the Base Rate, as applicable.
SECTION 5. REDUCTION OR TERMINATION OF THE COMMITMENTS; REPAYMENT;
PREPAYMENTS.
Section 5.1. Voluntary Termination or Reduction of the Commitments.
The Company may at any time on at least 5 days' prior irrevocable
notice received by the Agent (which shall promptly on the same day
or on the next Business Day advise each Bank thereof) permanently
reduce the amount of the Commitments (such reduction to be pro rata
among the Banks according to their respective Percentages) to an
amount not less than the aggregate principal amount of all
outstanding Loans. Any such reduction shall be in the amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof.
Concurrently with any such reduction, the Company shall prepay the
principal of any Committed Loans outstanding to the extent that the
aggregate amount of such Loans outstanding shall then exceed the
Aggregate Commitment, as so reduced. The Company may from time to
time on like irrevocable notice terminate the Commitments upon
payment in full of all Loans, all interest accrued thereon, all fees
and all other obligations of the Company hereunder; provided,
however, that the Company may not at any time terminate the
Commitments if any Bid Loan is outstanding (unless the holder of
each such outstanding Bid Loan has given its prior written consent
to the concurrent repayment of such Bid Loan).
Section 5.2. Voluntary Prepayments. The Company may voluntarily
prepay Loans (other than Bid Loans, which may only be prepaid with
the prior written consent of the holder thereof) without premium or
penalty, except as may be required pursuant to subsection (e) below,
in whole or in part; provided, that (a) each prepayment shall be in
an aggregate principal amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof, (b) except for the prepayment of
the aggregate amount of all Loans outstanding, no such prepayment
shall result in there being less than $10,000,000 in Loans
outstanding in the aggregate, (c) the Company shall give the Agent
at its Notice Office (which shall promptly advise each Bank) not
less than three Business Days' prior notice thereof specifying the
Loans to be prepaid and the date and amount of prepayment, (d) any
prepayment of principal of any Loan shall include accrued interest
to the date of prepayment on the principal amount being prepaid and
(e) any prepayment of a LIBOR Rate Loan shall be subject to the
provisions of Section 7.4.
SECTION 6. MAKING AND PRORATION OF PAYMENTS; SET-OFF; TAXES.
Section 6.1. Making of Payments. Except as provided in Section
3.2(d), payments (including those made pursuant to Section 5.1) of
principal of, or interest on, the Loans and all payments of fees and
any other payments required to be made by the Company to the Agent
hereunder shall be made by the Company to the Agent in immediately
available funds at its Payment Office not later than 12:00 Noon, New
York City time, on the date due; and funds received after that
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hour shall be deemed to have been received by the Agent on the next
following Business Day. The Agent shall promptly remit to each Bank
its share (if any) of each such payment. All payments under Section
7 and all payments required to be made hereunder to any Person other
than the Agent shall be made by the Company when due directly to the
Persons entitled thereto in immediately available funds.
Section 6.2. Pro Rata Treatment; Sharing.
(a) Except as required pursuant to Section 7 or Section 13.8, each
payment or prepayment of principal of any Committed Loans, each payment of
interest on the Committed Loans, each payment of the utilization fee and each
payment of the facility fee shall be allocated pro rata among the Banks in
accordance with their respective Percentages. Each payment of principal of any
Bid Borrowing shall be allocated pro rata among the Banks participating in such
Bid Borrowing in accordance with the respective principal amounts of their
outstanding Bid Loans comprising such Bid Borrowing. Each payment of interest on
any Bid Borrowing shall be allocated pro rata among the Banks participating in
such Bid Borrowing in accordance with the respective amounts of accrued and
unpaid interest on their outstanding Bid Loans comprising such Bid Borrowing.
(b) If any Bank or other holder of a Committed Loan shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
offset or otherwise) on account of principal of, interest on or fees or other
amounts with respect to any Committed Loan in excess of the share of payments
and other recoveries (exclusive of payments or recoveries under Section 7 or
pursuant to Section 13.8) such Bank or other holder would have received if such
payment had been distributed pursuant to the provisions of Section 6.2(a), such
Bank or other holder shall purchase from the other Banks or holders, in a manner
to be specified by the Agent, such participations in the Committed Loans held by
them as shall be necessary so that all such payments of principal and interest
with respect to the Committed Loans shall be shared by the Banks and other
holders pro rata in accordance with their respective Percentages; provided,
however, that if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Bank or holder, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
(c) If any Bank or other holder of a Bid Loan shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
offset or otherwise) on account of principal of, interest on or fees or other
amounts with respect to any Bid Loan in excess of the share of payments and
other recoveries (exclusive of payments or recoveries pursuant to Section 7 or
Section 13.8) such Bank or other holder would have received if such payment had
been distributed pursuant to the provisions of Section 6.2(a), such Bank or
other holder shall purchase from the other Banks or holders participating in
such Bid Borrowing, in a manner to be specified by the Agent, such
participations in the Bid Loans held by them as shall be necessary so that all
such payments of principal and interest with respect to the Bid Loans shall be
shared by the Banks and other holders participating in such Bid Borrowing in a
manner consistent with Section 6.2(a); provided, however, that if all or any
portion of the excess payment or other recovery is thereafter recovered from
such purchasing Bank or holder, the purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
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Section 6.3. Set-off. The Company agrees that the Agent, each Bank,
each Assignee and each Participant has all rights of set-off and
banker's lien provided by applicable law, and the Company further
agrees that at any time (i) any amount owing by the Company under
this Agreement is due to any such Person or (ii) any Event of
Default exists, each such Person may apply to the payment of any
amount payable hereunder any and all balances, credits, deposits,
accounts or moneys of the Company then or thereafter with such
Person.
Section 6.4. Taxes, etc. (a) All payments made by the Company to the
Agent, any Bank, any Assignee or any Participant under this
Agreement and the Notes shall be made without any set-off or
counterclaim, and free and clear of and without deduction for or on
account of any present or future Covered Taxes now or hereafter
imposed (except to the extent that such withholding or deduction (x)
is compelled by law, (y) results from the breach, by the recipient
of a payment, of its agreement contained in Section 6.4(b), Section
6.4(c) or Section 6.4(e) or (z) would not be required if the
representation or warranty contained in the second sentence of
Section 6.4(b) were true as of the date of this Agreement, or with
respect to a Bank that becomes a Bank pursuant to Section 13.4.1,
Section 13.4.2 or Section 13.8, true at the time such Bank becomes a
Bank hereunder). If the Company is compelled by law to make any such
deductions or withholdings of any Covered Taxes it will:
(i) pay to the relevant authorities the full amount required to be
so withheld or deducted,
(ii) except to the extent that such withholding or deduction results
from the breach by the recipient of its agreement contained in Section
6.4(b), Section 6.4(c) or Section 6.4(e) or, if applicable, would not be
required if the representation or warranty contained in the second
sentence of Section 6.4(b) were true as of the date of this Agreement, or
with respect to a Bank that becomes a Bank pursuant to Section 13.4.1,
Section 13.4.2 or Section 13.8, true at the time such Bank becomes a Bank
hereunder, pay such additional amounts as may be necessary in order that
the net amount received by the Agent, each Bank, each Assignee and each
Participant after such deductions or withholdings (including any required
deduction or withholding on such additional amounts) shall equal the
amount such payee would have received had no such deductions or
withholdings been made, and
(iii) promptly forward to the Agent (for delivery to such payee) an
official receipt or other documentation satisfactory to the Agent
evidencing such payment to such authorities.
Moreover, if any Covered Taxes are directly asserted against the
Agent, any Bank, any Assignee or any Participant, such payee may pay such
Covered Taxes, and, upon receipt of an official receipt or other satisfactory
documentation evidencing such payment, the Company shall promptly pay such
additional amount (including, without limitation, any penalties, interest or
reasonable expenses) as may be necessary in order that the net amount received
by such payee after the payment of such Covered Taxes (including any Covered
Taxes on such additional amount) shall equal the amount such payee would have
received had no such
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Covered Taxes been asserted (provided, that the Agent, the Banks, and any
Assignee or Participant shall use reasonable efforts, to the extent consistent
with applicable laws and regulations, to minimize to the extent possible any
such Covered Taxes if they can do so without material cost or legal or
regulatory disadvantage). For purposes of this Section 6.4, a distribution
hereunder by the Agent or any Bank to or for the account of any Bank, Assignee
or Participant shall be deemed to be a payment by the Company. The Company's
agreement under this Section 6.4 shall survive repayment of the Loans,
cancellation of the Notes or any termination of this Agreement.
(b) In consideration of, and as a condition to, the Company's
undertakings in Section 6.4(a), each Bank other than a Bank that is organized
and existing under the laws of the United States of America or any State thereof
(a "Non-U.S. Bank") agrees to execute and deliver to the Agent at its Payment
Office for delivery to the Company, before the first scheduled payment date in
each year, (i) to the extent it acts for its own account with respect to any
portion of any sums paid or payable to such Non-U.S. Bank under this Agreement,
two original copies of United States Internal Revenue Service Forms X-0XXX,
X-0XXX or W-8EXP (or any successor forms), as appropriate, properly completed
and duly executed by such Non-U.S. Bank, and claiming complete exemption from
withholding and deduction of United States Federal Taxes, and (ii) to the extent
it does not act or has ceased to act for its own account with respect to any
portion of any sums paid or payable to such Bank under this Agreement (for
example, in the case of a typical Participation by such Non-U.S. Bank), (1) for
the portion of any such sums paid or payable with respect to which such Non-U.S.
Bank acts for its own account, two original copies of the forms or statements
required to be provided by such Non-U.S. Bank under subsection (i) of this
Section 6.4(b), properly completed and duly executed by such Non-U.S. Bank and
claiming complete exemption from withholding and deduction of United States
Federal Taxes, and (2) for the portion of any such sums paid or payable with
respect to which such Non-U.S. Bank does not act or has ceased to act for its
own account, two original copies of United States Internal Revenue Service Form
W-8IMY (or any successor forms), properly completed and duly executed by such
Non-U.S. Bank, together with any information, if any, such Non-U.S. Bank chooses
to transmit with such form, and any other certificate or statement of exemption
required under the Internal Revenue Code or the regulations issued thereunder.
Each Bank hereby (i) represents and warrants to the Company that, at the date of
this Agreement, or at the time such Bank becomes a Bank hereunder, it is
entitled to receive payments of principal and interest hereunder without
deduction for or on account of any Taxes imposed by the United States of America
or any political subdivision thereof, and (ii) acknowledges that in the event
that after the date of this Agreement or after the date that a Bank becomes a
Bank hereunder, such Bank is no longer entitled to receive payments or principal
and interest hereunder without deduction for or on account of any Taxes imposed
by the United States of America or any political subdivision thereof, such Bank
will be subject to removal pursuant to Section 13.8 hereof.
(c) Each Non-U.S. Bank hereby agrees, from time to time after the
initial delivery by such Non-U.S. Bank of any forms or other information
pursuant to Section 6.4(b), whenever a lapse in time or change in circumstances
renders such forms, certificates or other evidence so delivered obsolete or
inaccurate in any material respect, that such Non-U.S. Bank shall promptly (and
in all events, prior to the next applicable payment date), deliver to the Agent
at the Payment Office for delivery to the Company two original copies of any
renewal,
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amendment or additional or successor forms, properly completed and duly executed
by such Non-U.S. Bank, together with any other certificate or statement of
exemption required by applicable law or regulation in order to (i) confirm or
establish such Non-U.S. Bank's complete exemption from withholding and deduction
of United States Federal Taxes with respect to payments to such Bank under this
Agreement or (ii) in the case of a change in law after the date on which such
Non-U.S. Bank became a Bank hereunder that results in a withholding or deduction
of United States Federal Taxes on payments hereunder to such Non-U.S. Bank,
establish the status of such Non-U.S. Bank as other than a United States person
for United States Federal tax purposes and, to the extent entitled under an
applicable treaty or other law, claim the benefit of a reduced rate of
withholding and deduction of United States Federal Taxes with respect to any
such payments under an applicable tax treaty of the United States, or (iii) if
applicable, confirm or establish that such Non-U.S. Bank does not act for its
own account with respect to any portion of any such payments.
(d) If the Company determines in good faith that a reasonable basis
exists for contesting a Covered Tax with respect to which the Company has paid
an additional amount under this Section 6.4, the Agent and the Banks, as
applicable, shall, subject to Section 6.4(f), cooperate with the Company in
challenging such Covered Tax at the Company's expense if requested by the
Company (it being understood and agreed that neither the Agent nor any Bank
shall have any obligation to contest, or any responsibility for contesting, any
Tax). If the Agent or a Bank has actual knowledge that it is entitled to receive
a refund (whether by way of a direct payment or by clearly identifiable offset
to an amount otherwise owed to the relevant taxing authority) in respect of a
Covered Tax with respect to which the Company has paid an additional amount
under this Section 6.4, it shall promptly notify the Company of the availability
of such refund (unless it was made aware of such refund by the Company) and
shall, within 30 days after the receipt of a request from the Company, apply for
such refund at the Company's expense. If the Agent or any Bank receives a refund
(whether by way of a direct payment or by clearly identifiable offset to an
amount otherwise owed to the relevant taxing authority) of any Covered Tax with
respect to which the Company has paid an additional amount under this Section
6.4 which, in the reasonable good faith judgment of the Agent or such Bank, as
the case may be, is allocable to such payment made under this Section 6.4, the
amount of such refund (together with any interest received thereon) shall be
paid to the Company, but only to the extent of the additional amounts received
from the Company, provided that, in the case of a Covered Tax the Company was
required to deduct and withhold under this Section 6.4, the Company deducted and
withheld such Covered Tax in full as and when required pursuant to this Section
6.4, provided further, that if such refund subsequently becomes unavailable or
must be returned, this will be treated as a Covered Tax indemnifiable under this
Section 6.4.
(e) Each Bank that is organized and existing under the laws of the
United States of America or any State thereof (a "U.S. Bank") agrees to execute
and deliver to the Agent at the Payment Office for delivery to the Company, on
or before the date of this Agreement or on or before the date such Bank becomes
a Bank hereunder and on or before the date on which such Bank ceases to act for
its own account with respect to the applicable portion of any sums paid or
payable to such U.S. Bank and before the first scheduled payment date in each
subsequent year a copy of United States Internal Revenue Service Form W-9 (or
any successor forms) properly
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completed and duly executed by such U.S. Bank, and claiming that it is organized
and existing under the laws of the United States of America or any State
thereof.
(f) Nothing contained in this Section 6.4 shall require any Bank to
make available its tax returns (or any other information relating to its taxes
that it deems confidential) to the Company or any other Person.
(g) Each Bank shall promptly notify the Company and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to receipt of additional amounts pursuant to this Section 6.4
and will designate a different Funding Office if such designation will avoid the
need for, or reduce the amount of, such amounts and will not, in such Bank's
sole discretion, be otherwise disadvantageous to such Bank.
SECTION 7. INCREASED COSTS AND SPECIAL PROVISIONS FOR ABSOLUTE RATE
LOANS AND LIBOR RATE LOANS.
Section 7.1. Increased Costs. (a) If after the date hereof, the
adoption of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or
compliance by any Bank (or any Funding Office of such Bank) with any
request or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency,
(A) shall subject any Bank (or any Funding Office of such Bank) to
any tax, duty or other charge with respect to its LIBOR Rate Loans, its
Notes or its obligation to make LIBOR Rate Loans, or shall change the
basis of taxation of payments to any Bank (or any Funding Office of such
Bank) of the principal of or interest on its LIBOR Rate Loans or any other
amounts due under this Agreement in respect of its LIBOR Rate Loans or its
obligation to make LIBOR Rate Loans (except for changes in the rate of tax
on the overall net income of such Bank or its Funding Office imposed by
any Governmental Authority of the country in which such Bank is
incorporated or in which such Bank's Funding Office is located);
(B) shall impose, modify or deem applicable any reserve (including,
without limitation, any reserve imposed by the Board of Governors of the
Federal Reserve System, but excluding any reserve included in the
determination of additional interest pursuant to Section 4.1), special
deposit, assessment (including any assessment for insurance of deposits)
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Bank (or any Funding Office of such Bank);
or
(C) shall impose on any Bank (or any Funding Office of such Bank)
any other condition affecting its LIBOR Rate Loans, its Notes or its
obligation to make or maintain LIBOR Rate Loans;
and the result of any of the foregoing is to increase the cost to (or to impose
an additional cost on) such Bank (or any Funding Office of such Bank) of making
or maintaining any LIBOR Rate
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Loan, or to reduce the amount of any sum received or receivable by such Bank (or
such Bank's Funding Office) under this Agreement or under its Notes with respect
thereto, then within 10 days after demand by such Bank (which demand shall be
accompanied by a statement setting forth the basis of such demand), the Company
shall pay directly to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or such reduction (without
duplication of any amounts which have been paid or reimbursed).
(b) If, after the date hereof, any Bank shall determine that the
adoption, effectiveness or phase-in of any applicable law, rule, guideline or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or any Funding Office of such
Bank or any Person controlling such Bank) with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on the capital of such Bank or any Person
controlling such Bank as a consequence of its obligations hereunder to a level
below that which such Bank or such controlling Person could have achieved but
for such adoption, change or compliance (taking into consideration such Bank's
or such controlling Person's policies with respect to capital adequacy), then,
from time to time, within 10 days after demand by such Bank (which demand shall
be accompanied by a statement setting forth the basis of such demand), the
Company shall pay directly to such Bank such additional amount or amounts as
will compensate such Bank or such controlling Person for such reduction.
(c) Each Bank shall promptly notify the Company and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section 7.1 and will
designate a different Funding Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in such Bank's
sole judgment, be otherwise disadvantageous to such Bank.
Section 7.2. Basis for Determining Interest Rate Inadequate or
Unfair. If with respect to the Loan Period for any LIBOR Rate Loan:
(a) the Telerate Page is not available and the Agent is advised by
two or more Reference Banks that deposits in Dollars (in the applicable
amounts) are not being offered to such Reference Banks in the relevant
market for such Loan Period, or the Agent otherwise determines (which
determination shall be binding and conclusive on all parties) that, by
reason of circumstances affecting the LIBOR market, adequate and
reasonable means do not exist for ascertaining the applicable LIBOR Rate;
or
(b) the Required Banks advise the Agent that the LIBOR Rate as
determined by the Agent will not adequately and fairly reflect the cost to
such Required Banks of maintaining or funding LIBOR Rate Loans for such
Loan Period, or that the making or funding of LIBOR Rate Loans has become
impracticable as a result of an event occurring after the date of this
Agreement which in such Required Banks' opinion materially affects LIBOR
Rate Loans,
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then (i) the Agent shall promptly notify the other parties thereof and (ii) so
long as such circumstances shall continue, no Bank shall be under any obligation
to make any LIBOR Rate Loan.
Section 7.3. Changes in Law Rendering Certain Loans Unlawful. In the
event that any change in (including the adoption of any new)
applicable laws or regulations, or in the interpretation of
applicable laws or regulations by any Governmental Authority or
other regulatory body charged with the administration thereof,
should make it (or in the good faith judgment of such Bank raise a
substantial question as to whether it is) unlawful for a Bank to
make, maintain or fund any LIBOR Rate Loan, then (a) such Bank shall
promptly notify each of the other parties hereto, (b) upon the
effectiveness of such event and so long as such unlawfulness shall
continue, the obligation of such Bank to make LIBOR Rate Loans shall
be suspended and any request by the Company for LIBOR Rate Loans
shall, as to such Bank, be deemed to be a request for a Base Rate
Loan, if said LIBOR Rate Loan is a Committed Loan, or an Absolute
Rate Loan, if said LIBOR Rate Loan is a Bid Loan and (c) on the last
day of the current Loan Period for such Bank's LIBOR Rate Loans (or,
in any event, if such Bank so requests on such earlier date as may
be required by the relevant law, regulation or interpretation) such
Bank's Loans which are LIBOR Rate Loans shall cease to be maintained
as LIBOR Rate Loans and shall thereafter bear interest at a floating
rate per annum equal to the Base Rate, if said LIBOR Rate Loan is a
Committed Loan, or at an Absolute Rate, which Absolute Rate shall be
the LIBOR Rate in effect during such Loan Period, if said LIBOR Rate
Loan is a Bid Loan. If at any time the event giving rise to such
unlawfulness shall no longer exist, then such Bank shall promptly
notify the Company and the Agent.
Section 7.4. Funding Losses. The Company hereby agrees that upon
demand by any Bank (which demand shall be accompanied by a statement
setting forth the basis for the calculations of the amount being
claimed) the Company will indemnify such Bank against any net loss
or expense which such Bank may sustain or incur (including, without
limitation, any net loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by
such Bank to fund or maintain any LIBOR Rate Loan or Absolute Rate
Loan), as reasonably determined by such Bank, as a result of (a) any
payment or mandatory or voluntary prepayment (including, without
limitation, any payment pursuant to Section 7.3 or any payment
resulting from acceleration) of any LIBOR Rate Loan or Absolute Rate
Loan of such Bank on a date other than the last day of the Loan
Period for such Loan or (b) any failure of the Company to borrow any
Loans on the originally scheduled Funding Date specified therefor
pursuant to this Agreement (including, without limitation, any
failure to borrow resulting from any failure to satisfy the
conditions precedent to such borrowing). For this purpose, all
notices to the Agent pursuant to this Agreement (including, without
limitation, all acceptances of Bids) shall be deemed to be
irrevocable.
Section 7.5. Discretion of Banks as to Manner of Funding.
Notwithstanding any provision of this Agreement to the contrary (but
subject to Section 7.1(c)), each Bank shall be entitled to fund and
maintain its funding of all or any part of its Loans in any manner
it sees fit, it being understood, however, that for the purposes of
this Agreement all determinations hereunder shall be made as if such
Bank had actually funded and maintained each LIBOR Rate Loan or
Absolute Rate Loan during the Loan Period for such Loan through the
purchase of deposits
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having a maturity corresponding to such Loan Period and bearing an
interest rate equal to the rate borne by such Loan for such Loan
Period.
Section 7.6. Conclusiveness of Statements; Survival of Provisions.
Determinations and statements of any Bank pursuant to this Section 7
shall be conclusive absent demonstrable error, and each Bank may use
reasonable averaging and attribution methods in determining
compensation pursuant to Section 7.1 or 7.4. The provisions of this
Section 7 shall survive termination of this Agreement and payment of
the Loans.
SECTION 8. REPRESENTATIONS AND WARRANTIES.
To induce the Banks to enter into this Agreement and to make Loans
hereunder, the Company hereby makes the following representations and warranties
to the Agent and the Banks, which representations and warranties shall survive
the execution and delivery of this Agreement and the Notes and the disbursement
of the initial Loans hereunder:
Section 8.1. Organization, etc. The Company is a corporation duly
organized, validly existing and in good standing under the laws of
the State of California; each corporate Subsidiary is a corporation
duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation; each other Subsidiary (if
any) is an entity duly organized and validly existing under the laws
of the jurisdiction of its organization; and each of the Company and
each Subsidiary has the power to own its property and to carry on
its business as now being conducted and is duly qualified and in
good standing as a foreign corporation or other entity authorized to
do business in each jurisdiction where, because of the nature of its
activities or properties, such qualification is required, except
where the failure to be so qualified or in good standing could not
reasonably be expected to have a Material Adverse Effect.
Section 8.2. Authorization; Consents; No Conflict. The execution and
delivery by the Company of this Agreement and the Notes, the
borrowings hereunder and the performance by the Company of its
obligations under this Agreement and the Notes (a) are within the
corporate powers of the Company, (b) have been duly authorized by
all necessary corporate action on the part of the Company, (c) have
received all necessary approvals, authorizations, consents,
registrations, notices, exemptions and licenses (if any shall be
required) from Governmental Authorities and other Persons, except
for any such approvals, authorizations, consents, registrations,
notices, exemptions or licenses non-receipt of which could not
reasonably be expected to have a Material Adverse Effect, (d) do not
and will not contravene or conflict with any provision of (i) law,
(ii) any judgment, decree or order to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary is
bound, (iii) the charter, by-laws or other organizational documents
of the Company or any Subsidiary or (iv) any provision of any
agreement or instrument binding on the Company or any Subsidiary, or
any agreement or instrument of which the Company is aware affecting
the properties of the Company or any Subsidiary, except with respect
to (i), (ii) and (iv) above, for any such contravention or conflict
which could not reasonably be expected to have a Material Adverse
Effect and (e) do not and will not result in or require the creation
or imposition of any Lien on any of the Company's or its
Subsidiaries' properties.
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Section 8.3. Validity and Binding Nature. This Agreement is, and the
Notes (if any) when duly executed and delivered will be, legal,
valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
Section 8.4. Financial Statements. The Company's audited
consolidated financial statements as at December 31, 2003, and
unaudited consolidated financial statements as at June 30, 2004, a
copy of each of which has been furnished to each Bank, have been
prepared in conformity with generally accepted accounting principles
in the United States of America applied on a basis consistent with
that of the preceding fiscal year subject, in the case of unaudited
financial statements, to changes resulting from audit and year-end
adjustments and fairly present the financial condition of the
Company and its Subsidiaries as at such dates and the results of
their operations for the year then ended.
Section 8.5. Litigation and Contingent Liabilities. All Litigation
Actions, taken as a whole, could not reasonably be expected to have
a Material Adverse Effect. Other than any liability incident to such
Litigation Actions or provided for or disclosed in the financial
statements referred to in Section 8.4, neither the Company nor any
Subsidiary has any contingent liabilities which are material to the
business, credit, operations or financial condition of the Company
and its Subsidiaries taken as a whole.
Section 8.6. Employee Benefit Plans. Each employee benefit plan (as
defined in Section 3(3) of ERISA) maintained or sponsored by the
Company or any Subsidiary complies in all material respects with all
applicable requirements of law and regulations. During the
twelve-consecutive-month period prior to the execution and delivery
of this Agreement, (i) no steps have been taken to terminate any
Plan and no contribution failure has occurred with respect to any
Plan sufficient to give rise to a lien under Section 302(f) of
ERISA, (ii) no Reportable Event has occurred with respect to any
Plan and (iii) neither the Company nor any ERISA Affiliate has
either withdrawn or instituted steps to withdraw from any
Multiemployer Plan, except in any such case for actions which
individually or in the aggregate could not reasonably be expected to
have a Material Adverse Effect. No condition exists or event or
transaction has occurred in connection with any Plan which could
reasonably be expected to result in the incurrence by the Company or
any Subsidiary of any material liability, fine or penalty (imposed
by Section 4975 of the Code or Section 502(i) of ERISA or
otherwise). Neither the Company nor any ERISA Affiliate is a member
of, or contributes to, any Multiemployer Plan as to which the
potential withdrawal liability based upon the most recent actuarial
report could reasonably be expected to have a Material Adverse
Effect. Neither the Company nor any Subsidiary has any material
contingent liability with respect to any post retirement benefit
under an employee welfare benefit plan (as defined in section 3(i)
of ERISA), other than liability for continuation coverage described
in Part 6 of Title I of ERISA.
Section 8.7. Investment Company Act. The Company is not 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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Section 8.8. Public Utility Holding Company Act. Neither the Company
nor any Subsidiary is a "holding company", or a "subsidiary company"
of a "holding company", or an "affiliate" of a "holding company" or
of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
Section 8.9. Regulation U. Neither the Company nor any Subsidiary is
engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of buying or carrying
margin stock (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System as amended from time to
time).
Section 8.10. Information. (a) All information with respect to the
Company contained in the September, 2004 memorandum furnished by the
Agent to the Banks and all information heretofore furnished by the
Company to the Agent or any Bank is, to the best of the Company's
knowledge after due inquiry, true and accurate in every material
respect as of the date thereof, and none of such information
contains any material misstatement of fact or omits to state any
material fact necessary to make such information not misleading.
(b) All information furnished by the Company to the Agent or any
Bank on and after the date hereof shall be, to the best of the Company's
knowledge after due inquiry, true and accurate in every material respect as of
the date of such information, and none of such information shall contain any
material misstatement of fact or shall omit to state any material fact necessary
to make such information not misleading.
Section 8.11. Compliance with Applicable Laws, etc. The Company and
its Subsidiaries are in compliance with the requirements of all
applicable laws, rules, regulations and orders of all Governmental
Authorities (including, without limitation, ERISA and all applicable
environmental laws), except for noncompliance that could not
reasonably be expected to have a Material Adverse Effect. Neither
the Company nor any Subsidiary is in default under any agreement or
instrument to which the Company or such Subsidiary is a party or by
which it or any of its properties or assets is bound, which default
could reasonably be expected to have a Material Adverse Effect on
the business, credit, operations or financial condition of the
Company and its Subsidiaries taken as a whole. No Event of Default
or Unmatured Event of Default has occurred and is continuing.
Section 8.12. Insurance. Each of the Company and each Subsidiary
maintains, or, in the case of any property owned by the Company or
any Subsidiary and leased to lessees, has contractually required
such lessees to maintain, insurance with financially sound and
reputable insurers to such extent and against such hazards and
liabilities as is commonly maintained, or caused to be maintained,
as the case may be, by companies similarly situated.
Section 8.13. Taxes. Each of the Company and each Subsidiary has
filed all tax returns which are required to have been filed and has
paid, or made adequate provisions for the payment of, all of its
Taxes which are due and payable, except such Taxes, if any, as are
being contested in good faith and by appropriate proceedings and as
to which such reserves or other appropriate provisions as may be
required by generally accepted accounting principles have been
established and
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except where failure to pay such Taxes, individually or in the
aggregate, cannot reasonably be expected to have a Material Adverse
Effect.
Section 8.14. Use of Proceeds. The proceeds of the Loans will be
used by the Company for general corporate purposes.
Section 8.15. Pari Passu. All obligations and liabilities of the
Company hereunder shall rank at least equally and ratably (pari
passu) in priority with all other unsubordinated, unsecured
obligations of the Company to any other creditor.
SECTION 9. COVENANTS.
Until the expiration or termination of the Commitments, and
thereafter until all obligations of the Company hereunder and under the Notes
are paid in full, the Company agrees that, unless at any time the Required Banks
shall otherwise expressly consent in writing, it will:
Section 9.1. Reports, Certificates and Other Information. Furnish to
the Agent with sufficient copies for each Bank which the Agent shall
promptly furnish to each Bank:
9.1.1. Audited Financial Statements. As soon as available, and in
any event within 95 days after each fiscal year of the Company, a copy of
the audited financial statements and annual audit report of the Company
and its Subsidiaries for such fiscal year prepared on a consolidated basis
and in conformity with generally accepted accounting principles in the
United States of America and certified by PricewaterhouseCoopers LLP or by
another independent certified public accountant of recognized national
standing selected by the Company and satisfactory to the Required Banks.
9.1.2. Interim Reports. As soon as available, and in any event
within 50 days after each quarter (except the last quarter) of each fiscal
year of the Company, a copy of the unaudited financial statements of the
Company and its Subsidiaries for such quarter prepared in a manner
consistent with the audited financial statements referred to in Section
9.1.1, signed by the Company's chief financial officer and consisting of
at least a balance sheet as at the close of such quarter and statements of
earnings and cash flows for such quarter and for the period from the
beginning of such fiscal year to the close of such quarter.
9.1.3. Certificates. Contemporaneously with the furnishing of a copy
of each annual audit report and of each set of quarterly statements
provided for in this Section 9.1, a certificate of the Company dated the
date of delivery of such annual report or such quarterly statements and
signed by the Company's chief financial officer, to the effect that no
Event of Default or Unmatured Event of Default has occurred and is
continuing, or, if there is any such event, describing it and the steps,
if any, being taken to cure it and containing a computation of, and
showing compliance with, each of the financial ratios and restrictions
contained in this Section 9.
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9.1.4. Certain Notices. Forthwith upon learning of the occurrence of
any of the following, written notice thereof, describing the same and the
steps being taken by the Company or the Subsidiary affected with respect
thereto:
(i) the occurrence of an Event of Default or an Unmatured
Event of Default;
(ii) the institution of any Litigation Action; provided, that
the Company need not give notice of any new Litigation Action unless
such Litigation Action, together with all other pending Litigation
Actions, could reasonably be expected to have a Material Adverse
Effect;
(iii) the entry of any judgment or decree against the Company
or any Subsidiary if the aggregate amount of all judgments and
decrees then outstanding against the Company and all Subsidiaries
exceeds $50,000,000 after deducting (i) the amount with respect to
which the Company or any Subsidiary is insured and with respect to
which the insurer has not denied coverage in writing and (ii) the
amount for which the Company or any Subsidiary is otherwise
indemnified if the terms of such indemnification are satisfactory to
the Agent and the Required Banks;
(iv) the occurrence of a Reportable Event with respect to any
Plan; the institution of any steps by the Company, any ERISA
Affiliate, the PBGC or any other Person to terminate any Plan; the
institution of any steps by the Company or any ERISA Affiliate to
withdraw from any Plan; the incurrence of any material increase in
the contingent liability of the Company or any Subsidiary with
respect to any post-retirement welfare benefits; or the failure of
the Company or any other Person to make a required contribution to a
Plan if such failure is sufficient to give rise to a lien under
Section 302(f) of ERISA; provided, however, that no notice shall be
required of any of the foregoing unless the circumstance could
reasonably be expected to have a Material Adverse Effect; or
(v) the occurrence of a material adverse change in the
business, credit, operations or financial condition of the Company
and its Subsidiaries taken as a whole.
9.1.5. SEC Filings. Promptly after the filing or making thereof,
copies of all 8-K's (other than 8-K's relating solely to the issuance by
the Company of securities pursuant to an effective registration
statement), 10-Q's, 10-K's, and other material reports or registration
statements filed by the Company or any Subsidiary with or to any
securities exchange or the Securities and Exchange Commission.
9.1.6. Other Information. From time to time such other information
concerning the Company and its Subsidiaries as any Bank or the Agent may
reasonably request.
Section 9.2. Existence. Maintain and preserve, and, subject to the
proviso in Section 9.9, cause each Subsidiary to maintain and
preserve, its respective
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existence as a corporation or other form of business organization,
as the case may be, and all rights, privileges, licenses, patents,
patent rights, copyrights, trademarks, trade names, franchises and
other authority to the extent material and necessary for the conduct
of its respective business in the ordinary course as conducted from
time to time, except as may be determined by the Board of Directors
of the Company in good faith that a Subsidiary that is not necessary
or material to the business of the Company in its ordinary course as
conducted from time to time.
Section 9.3. Nature of Business. Subject to Section 9.2, engage, and
cause each Subsidiary to engage, in substantially the same fields of
business as it is engaged in on the date hereof.
Section 9.4. Books, Records and Access.
(a) Maintain, and cause each Subsidiary to maintain, complete and
accurate books and records in which full and correct entries in conformity with
generally accepted accounting principles in the United States of America shall
be made of all dealings and transactions in relation to its respective business
and activities.
(b) Permit, and cause each Subsidiary to permit, access by the Agent
and each Bank to the books and records of the Company and such Subsidiary during
normal business hours, and permit, and cause each Subsidiary to permit, the
Agent and each Bank to make copies of such books and records upon reasonable
notice and as often as may be reasonably requested.
Section 9.5. Insurance. Maintain, and cause each Subsidiary to
maintain, such insurance as is described in Section 8.12.
Section 9.6. Repair. Maintain, preserve and keep, and cause each
Subsidiary to maintain, preserve and keep, its material properties
in good repair, working order and condition, ordinary wear and tear
excepted. In the case of properties leased by the Company or any
Subsidiary to lessees, the Company may satisfy its obligations
related to such properties under the previous sentence by
contractually requiring, or by causing each Subsidiary to
contractually require, such lessees to perform such obligations.
Section 9.7. Taxes. Pay or cause to be paid, and cause each
Subsidiary to pay, or cause to be paid, prior to the imposition of
any penalty or fine, all of its Taxes, unless and only to the extent
that the Company or such Subsidiary, as the case may be, is
contesting any such Taxes in good faith and by appropriate
proceedings and the Company or such Subsidiary has set aside on its
books such reserves or other appropriate provisions therefor as may
be required by generally accepted accounting principles in the
United States of America, except where failure to pay such Taxes,
individually or in the aggregate, cannot reasonably be expected to
have a Material Adverse Effect.
Section 9.8. Compliance. Comply, and cause each Subsidiary to comply
with all statutes (including without limitation ERISA) and
governmental rules and regulations applicable to it except to the
extent noncompliance could not reasonably be expected to have a
Material Adverse Effect.
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Section 9.9. Sale of Assets. Not, and not permit any Subsidiary to,
transfer, convey, lease (except for in the ordinary course of
business) or otherwise dispose of all or substantially all of the
assets of the Company and its Subsidiaries taken as a whole;
provided, however, that any Wholly-owned Subsidiary may sell,
transfer, convey, lease or assign all or a substantial part of its
assets to the Company or another Wholly-owned Subsidiary if
immediately thereafter and after giving effect thereto no Event of
Default or Unmatured Event of Default shall have occurred and be
continuing.
Section 9.10. Consolidated Indebtedness to Consolidated Tangible Net
Worth Ratio. Not permit the ratio of Consolidated Indebtedness to Consolidated
Tangible Net Worth to exceed 600% on and as of the last day of any fiscal year
or 650% at any other time.
Section 9.11. Fixed Charge Coverage Ratio. Not permit the Fixed
Charge Coverage Ratio on the last day of any quarter of any fiscal
year of the Company to be less than 110%.
Section 9.12. Consolidated Tangible Net Worth. Not permit the
Company's Consolidated Tangible Net Worth to be less than
$3,500,000,000 minus, to the extent included in the calculation of
Consolidated Tangible Net Worth, other comprehensive income of the
Company and its Subsidiaries (or, in the case of a comprehensive
income deficit, plus the amount of such deficit) plus 50% of (a) the
cumulative net income (but without deduction for cumulative net
losses) of the Company and its Subsidiaries since December 31, 2002
determined on a consolidated basis in accordance with United States
of America generally accepted accounting principles, (b) the
cumulative equity capital contributions from AIG or any of its
direct or indirect Subsidiaries since December 31, 2002 and (c) the
net proceeds from the sale of preferred stock, in each case for the
period from December 31, 2002 to and including the date of any
determination hereunder.
Section 9.13. Restricted Payments. Not declare or pay any dividends
whatsoever or make any distribution on any capital stock of the
Company (except in shares of, or warrants or rights to subscribe for
or purchase shares of, capital stock of the Company), and not permit
any Subsidiary to, make any payment to acquire or retire shares of
capital stock of the Company, in each case at any time when (i) an
Event of Default as described in Section 11.1 has occurred and is
continuing and there are Loans outstanding hereunder or (ii) an
Event of Default as described in Section 11.1.1 has occurred and is
continuing and there are no Loans outstanding hereunder; provided,
however, that notwithstanding the foregoing, this Section 9.13 shall
not prohibit (x) the payment of dividends on any of the Company's
market auction preferred stock that was sold to the public pursuant
to an effective registration statement under the Securities Act of
1933 or (y) the payment of dividends within 30 days of the
declaration thereof if such declaration was not prohibited by this
Section 9.13.
Section 9.14. Liens. Not, and not permit any Subsidiary to, create
or permit to exist any Lien upon or with respect to any of its
properties or assets of any kind, now owned or hereafter acquired,
or on any income or profits therefrom, except for
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(a) Liens existing on the date hereof that are reflected in the
financial statements of the Company dated prior to the date hereof;
(b) Liens to secure the payment of all or any part of the purchase
price of any property or assets or to secure any Indebtedness incurred by
the Company or a Subsidiary to finance the acquisition of any property or
asset. For the avoidance of doubt, Liens securing Indebtedness relating to
ECA Financings or Eximbank financings shall be permitted hereunder;
(c) Liens securing the Indebtedness of a Subsidiary owing to the
Company or to a Wholly-owned Subsidiary;
(d) Liens on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company or a
Subsidiary or at the time of a purchase, lease or other acquisition of the
properties of a corporation or firm as an entirety or substantially as an
entirety by the Company or a Subsidiary; provided, that any such Lien
shall not extend to or cover any assets or properties of the Company or
such Subsidiary owned by the Company or such Subsidiary prior to such
merger, consolidation, purchase, lease or acquisition, unless otherwise
permitted under this Section 9.14;
(e) leases, subleases or licenses granted to others in the ordinary
and usual course of the Company's business;
(f) easements, rights of way, restrictions and other similar charges
or encumbrances not interfering in any material respect with the ordinary
conduct of the business of the Company or any Subsidiary;
(g) banker's Liens arising, other than by contract, in the ordinary
and usual course of the Company's business;
(h) Liens incurred or deposits made in the ordinary course of
business in connection with surety and appeal bonds, leases, government
contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);
provided, however, that the obligation so secured is not overdue or is
being contested in good faith and by appropriate proceedings diligently
pursued;
(i) any replacement or successive replacement in whole or in part of
any Lien referred to in the foregoing clauses (a) to (h), inclusive;
provided, however, that the principal amount of any Indebtedness secured
by the Lien shall not be increased and the principal repayment schedule
and maturity of such Indebtedness shall not be extended and (i) such
replacement shall be limited to all or a part of the property which
secured the Lien so replaced (plus improvements and construction on such
property) or (ii) if the property which secured the Lien so replaced has
been destroyed, condemned or damaged
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and pursuant to the terms of the Lien other property has been substituted
therefor, then such replacement shall be limited to all or part of such
substituted property;
(j) Liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate
proceedings, including Liens arising out of judgments or awards against
the Company or any Subsidiary with respect to which the Company or such
Subsidiary is in good faith prosecuting an appeal or proceedings for
review; Liens incurred by the Company or any Subsidiary for the purpose of
obtaining a stay or discharge in the course of any litigation or other
proceeding to which the Company or such Subsidiary is a party; or Liens
created by or resulting from any litigation or other proceeding that would
not result in an Event of Default hereunder;
(k) carrier's, warehouseman's, mechanic's, landlord's and
materialmen's Liens, Liens for Taxes, assessments and other governmental
charges and other Liens arising in the ordinary course of business,
securing obligations that are not incurred in connection with the
obtaining of any advance or credit and which are either not overdue or are
being contested in good faith and by appropriate proceedings diligently
pursued; and
(l) other Liens securing Indebtedness of the Company or any
Subsidiary in an aggregate amount which, together with all other
outstanding Indebtedness of the Company and the Subsidiaries secured by
Liens not listed in clauses (a) through (k) of this Section 9.14, does not
at the time exceed 12.5% of the Consolidated Tangible Net Assets of the
Company as shown on its audited consolidated financial statements as of
the end of the fiscal year preceding the date of determination.
Section 9.15. Use of Proceeds. Not permit any proceeds of the Loans
to be used, either directly or indirectly,
(a) for the payment of any dividend or for the repurchase of any of
the Company's equity securities;
(b) for the purpose, whether immediate, incidental or ultimate, of
buying or carrying any margin stock within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System, as amended from time
to time;
(c) for the purpose, whether immediate, incidental or ultimate, of
acquiring directly or indirectly any of the outstanding shares of voting
stock of any corporation which (i) has announced that it will oppose such
acquisition or (ii) has commenced any litigation which alleges that any
such acquisition violates, or will violate, applicable law; or
(d) for any other purpose except for general corporate purposes.
SECTION 10. CONDITIONS TO LENDING.
Section 10.1. Conditions Precedent to All Loans. Each Bank's
obligation to make each Loan is subject to the following conditions
precedent:
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10.1.1. No Default. (a) No Event of Default or Unmatured Event of
Default has occurred and is continuing or will result from the making of
such Loan, (b) the representations and warranties contained in Section 8
are true and correct in all material respects as of the date of such
requested Loan, with the same effect as though made on the date of such
Loan (it being understood that each request for a Loan shall automatically
constitute a representation and warranty by the Company that, as at the
requested date of such Loan, (x) all conditions under this Section 10.1.1
shall be satisfied and (y) after the making of such Loan the aggregate
principal amount of all outstanding Loans will not exceed the Aggregate
Commitment).
10.1.2. Documents. The Agent shall have received (a) a certificate
signed by an Authorized Officer of the Company as to compliance with
Section 10.1.1, which requirement shall be deemed satisfied by the
submission of a properly completed Notice of Competitive Bid Borrowing or
Committed Loan Request and (b) such other documents as the Agent may
reasonably request in support of such Loan.
10.1.3. Litigation. No Litigation Action not disclosed in writing by
the Company to the Agent and the Banks prior to the date of the last
previous Loan hereunder (or, in the case of the initial Loan, prior to the
date of execution and delivery of this Agreement) ("New Litigation") has
been instituted and no development not so disclosed has occurred in any
other Litigation Action ("Existing Litigation"), unless the resolution of
all New Litigation and Existing Litigation against the Company and its
Subsidiaries could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
Section 10.2. Conditions to the Availability of the Commitments. The
obligations of each Bank hereunder are subject to the satisfaction
of each of the following conditions precedent, and the Banks'
Commitments shall not become available until the date on which the
Agent has determined that each of the following conditions precedent
shall have been satisfied or, to the extent not so satisfied, waived
in writing by the Required Banks (the "Closing Date"):
10.2.1. Revolving Credit Agreement. The Agent shall have received
this Agreement duly executed and delivered by each of the Banks and the
Company and each of the Banks shall have received a fully executed
Committed Note and a fully executed Bid Note, if such Notes are requested
by any Bank pursuant to Section 12.9.
10.2.2. Evidence of Corporate Action. The Agent shall have received
certified copies of all corporate actions taken by the Company to
authorize this Agreement and the Notes.
10.2.3. Incumbency and Signatures. The Agent shall have received a
certificate of the Secretary or an Assistant Secretary of the Company
certifying the names of the officer or officers of the Company authorized
to sign this Agreement, the Notes and the other documents provided for in
this Agreement to be executed by the Company, together with a sample of
the true signature of each such officer (it being understood that the
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Agent and each Bank may conclusively rely on such certificate until
formally advised by a like certificate of any changes therein).
10.2.4. Good Standing Certificates. The Agent shall have received
such good standing certificates of state officials with respect to the
incorporation of the Company, or other matters, as the Agent or the Banks
may reasonably request.
10.2.5. Opinions of Company Counsel. The Agent shall have received
favorable written opinions of O'Melveny & Xxxxx LLP, counsel for the
Company, in substantially the form of Exhibit G, and the General Counsel
of the Company, in substantially the form of Exhibit H.
10.2.6. Opinion of Agent's Counsel. The Agent shall have received a
favorable written opinion of Milbank, Tweed, Xxxxxx & XxXxxx LLP, special
New York counsel to the Agent, with respect to such legal matters as the
Agent reasonably may require.
10.2.7. Other Documents. The Agent shall have received such other
certificates and documents as the Agent or the Banks reasonably may
require.
10.2.8. Fees. The Agent shall have received for the account of the
Agent the Agent's fees payable to the Funding Date pursuant to Section 4.6
hereof.
10.2.9. Material Adverse Change. The Agent shall have received a
certificate of the Company's chief financial officer confirming that since
the date of the audited financial statements identified in Section 8.4
hereof, there shall not have occurred any material adverse change in the
business, credit, operations or financial condition of the Company and its
Subsidiaries taken as a whole.
10.2.10. Termination of Revolving Credit Facility. The Company shall
have paid all amounts owing and otherwise satisfied and discharged all of
its obligations arising under the $1,050,000,000 3-Year Credit Agreement,
dated as of October 17, 2003, among the Company, the Agent and the banks
named therein, and such agreement shall have been terminated and be of no
further force and effect, evidence of which shall have been made available
to the Agent.
SECTION 11. EVENTS OF DEFAULT AND THEIR EFFECT.
Section 11.1. Events of Default. Each of the following shall
constitute an Event of Default under this Agreement:
11.1.1. Non-Payment of the Loans, etc. Default in the payment when
due of any principal of any Loan or default and continuance thereof for
three Business Days in the payment when due of any interest on any Loan,
any fees or any other amounts payable by the Company hereunder.
11.1.2. Non-Payment of Other Indebtedness for Borrowed Money.
Default in the payment when due (subject to any applicable grace period),
whether by acceleration or
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otherwise, of any principal of, interest on or fees incurred in connection
with any other Indebtedness of, or Guaranteed by, the Company or any
Significant Subsidiary (except (i) any such Indebtedness of any Subsidiary
to the Company or to any other Subsidiary and (ii) any Indebtedness
hereunder) and, if a default in the payment of interest or fees,
continuance of such default for five days, in the case of interest, or 30
days, in the case of fees, or default in the performance or observance of
any obligation or condition with respect to any such other Indebtedness if
the effect of such default (subject to any applicable grace period) is to
accelerate the maturity of any such Indebtedness or to permit the holder
or holders thereof, or any trustee or agent for such holders, to cause
such Indebtedness to become due and payable prior to its expressed
maturity; provided, however, that the aggregate principal amount of all
Indebtedness as to which there has occurred any default as described above
shall equal or exceed $50,000,000.
11.1.3. Bankruptcy, Insolvency, etc. The Company or any Significant
Subsidiary becomes insolvent or generally fails to pay, or admits in
writing its inability or refusal to pay, debts as they become due; or the
Company or any Significant Subsidiary applies for, consents to, or
acquiesces in the appointment of a trustee, receiver or other custodian
for the Company or such Significant Subsidiary or any property thereof, or
makes a general assignment for the benefit of creditors; or, in the
absence of such application, consent or acquiescence, a trustee, receiver
or other custodian is appointed for the Company or any Significant
Subsidiary or for a substantial part of the property of any thereof and is
not discharged within 60 days; or any warrant of attachment or similar
legal process is issued against any substantial part of the property of
the Company or any of its Significant Subsidiaries which is not released
within 60 days of service; or any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under any bankruptcy or
insolvency law, or any dissolution or liquidation proceeding (except the
voluntary dissolution, not under any bankruptcy or insolvency law, of a
Significant Subsidiary), is commenced in respect of the Company or any
Significant Subsidiary, and, if such case or proceeding is not commenced
by the Company or such Significant Subsidiary it is consented to or
acquiesced in by the Company or such Significant Subsidiary or remains for
60 days undismissed; or the Company or any Significant Subsidiary takes
any corporate action to authorize, or in furtherance of, any of the
foregoing.
11.1.4. Non-Compliance with this Agreement. Failure by the Company
to comply with or to perform any of the Company's covenants herein or any
other provision of this Agreement (and not constituting an Event of
Default under any of the other provisions of this Section 11.1) and
continuance of such failure for 60 days (or, if the Company failed to give
notice of such noncompliance or nonperformance pursuant to Section 9.1.4
within one Business Day after obtaining actual knowledge thereof, 60 days
less the number of days elapsed between the date the Company obtained such
actual knowledge and the date the Company gives the notice pursuant to
Section 9.1.4, but in no event less than one Business Day) after notice
thereof to the Company from the Agent, any Bank, or the holder of any
Note.
11.1.5. Representations and Warranties. Any representation or
warranty made by the Company herein is untrue or misleading in any
material respect when made or
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deemed made; or any schedule, statement, report, notice, or other writing
furnished by the Company to the Agent or any Bank is false or misleading
in any material respect on the date as of which the facts therein set
forth are stated or certified; or any certification made or deemed made by
the Company to the Agent or any Bank is untrue or misleading in any
material respect on or as of the date made or deemed made.
11.1.6. Employee Benefit Plans. The occurrence of any of the
following events, provided that such event would reasonably be expected to
require payment by the Company or a Subsidiary of an amount in excess of
$10,000,000: (i) the institution by the Company or any ERISA Affiliate of
steps to terminate any Plan, (ii) the institution by the PBGC of steps to
terminate any Plan; or (iii) a contribution failure occurs with respect to
a Plan sufficient to give rise to a lien under Section 302(f) of ERISA
securing an amount in excess of $10,000,000.
11.1.7. Judgments. There shall be entered against the Company or any
Subsidiary one or more judgments or decrees in excess of $50,000,000 in
the aggregate at any one time outstanding for the Company and all
Subsidiaries and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from
the entry thereof, excluding those judgments or decrees for and to the
extent to which the Company or any Subsidiary (i) is insured and with
respect to which the insurer has not denied coverage in writing or (ii) is
otherwise indemnified if the terms of such indemnification are
satisfactory to the Required Banks.
11.1.8. Change of Ownership. AIG shall cease to own beneficially,
directly or indirectly, at least 51% of all of the outstanding shares of
the common stock of the Company.
Section 11.2. Effect of Event of Default. If any Event of Default
described in Section 11.1.3 shall occur, the Commitments (if they
have not theretofore terminated) shall immediately terminate and all
Loans and all interest and other amounts due hereunder shall become
immediately due and payable, all without presentment, demand or
notice of any kind; and, in the case of any other Event of Default,
the Agent may, and upon written request of the Required Banks shall,
declare the Commitments (if they have not theretofore terminated) to
be terminated and all Loans and all interest and other amounts due
hereunder to be due and payable, whereupon the Commitments (if they
have not theretofore terminated) shall immediately terminate and all
Loans and all interest and other amounts due hereunder shall become
immediately due and payable, all without presentment, demand or
notice of any kind. The Agent shall promptly advise the Company and
each Bank of any such declaration, but failure to do so shall not
impair the effect of such declaration.
SECTION 12. THE AGENT.
Section 12.1. Authorization. Each Bank and the holder of each Loan
or interest therein authorizes the Agent to act on behalf of such
Bank or holder to the extent provided herein and in any other
document or instrument delivered hereunder or in connection
herewith, and to take such other action as may be reasonably
incidental thereto. Subject to the provisions of Section 12.3, the
Agent will take
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such action permitted by any agreement delivered in connection with this
Agreement as may be requested in writing by the Required Banks or if
required under Section 13.1, all of the Banks. The Agent shall promptly
remit in immediately available funds to each Bank or other holder its
share of all payments received by the Agent for the account of such Bank
or holder, and shall promptly transmit to each Bank (or share with each
Bank the contents of) each notice it receives from the Company pursuant to
this Agreement.
Section 12.2. Indemnification. The Banks agree to indemnify the
Agent in its capacity as such (to the extent not reimbursed by the
Company), ratably according to their respective Percentages
(determined at the time such indemnity is sought), from and against
any and all actions, causes of action, suits, losses, liabilities,
damages and expenses which may at any time (including, without
limitation, at any time following the repayment of the Loans) be
imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of this Agreement, or any documents
contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted by the Agent
under or in connection with any of the foregoing; provided, that no
Bank shall be liable for the payment to the Agent of any portion of
such actions, causes of action, suits, losses, liabilities, damages
and expenses resulting from the Agent's or its employees' or agents'
gross negligence or willful misconduct. Without limiting the
foregoing, subject to Section 13.5 each Bank agrees to reimburse the
Agent promptly upon demand for its ratable share (determined at the
time such reimbursement is sought) of any out-of-pocket expenses
(including reasonable counsel fees) incurred by the Agent in such
capacity in connection with the preparation, execution or
enforcement of, or legal advice in respect of rights or
responsibilities under, this Agreement or any amendments or
supplements hereto or thereto to the extent that the Agent is not
reimbursed for such expenses by the Company. All obligations
provided for in this Section 12.2 shall survive repayment of the
Loans, cancellation of the Notes or any termination of this
Agreement.
Section 12.3. Action on Instructions of the Required Banks. As to
any matters not expressly provided for by this Agreement (including,
without limitation, enforcement or collection of the Loans), the
Agent shall not be required to exercise any discretion or take any
action, but the Agent shall in all cases be fully protected in
acting or refraining from acting upon the written instructions from
(i) the Required Banks, except for instructions which under the
express provisions hereof must be received by the Agent from all
Banks and (ii) in the case of such instructions, from all Banks. In
no event will the Agent be required to take any action which exposes
the Agent to personal liability or which is contrary to this
Agreement or applicable law. The relationship between the Agent and
the Banks is and shall be that of agent and principal only and
nothing herein contained shall be construed to constitute the Agent
a trustee for any holder of a Loan or of a participation therein nor
to impose on the Agent duties and obligations other than those
expressly provided for herein.
Section 12.4. Payments. (a) The Agent shall be entitled to assume
that each Bank has made its Loan available in accordance with
Section 2.3 or Section 3.2(c), as applicable, unless such Bank
notifies the Agent at its Notice Office prior to 11:00 a.m., New
York City time, on the Funding Date for such Loan that it does not
intend to make such Loan available, it being understood that no such
notice shall relieve such Bank of any of its obligations under this
Agreement. If
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the Agent makes any payment to the Company on the assumption that a Bank
has made the proceeds of such Loan available to the Agent but such Bank
has not in fact made the proceeds of such Loan available to the Agent,
such Bank shall pay to the Agent on demand an amount equal to the amount
of such Bank's Loan, together with interest thereon for each day that
elapses from and including such Funding Date to but excluding the Business
Day on which the proceeds of such Bank's Loan become immediately available
to the Agent at its Payment Office prior to 12:00 Noon, New York City
time, at the Federal Funds Rate for each such day, based upon a year of
360 days. A certificate of the Agent submitted to any Bank with respect to
any amounts owing under this Section 12.4(a) shall be conclusive absent
demonstrable error. If the proceeds of such Bank's Loan are not made
available to the Agent at its Payment Office by such Bank within three
Business Days of such Funding Date, the Agent shall be entitled to recover
such amount upon two Business Days' demand from the Company, together with
interest thereon for each day that elapses from and including such Funding
Date to but excluding the Business Day on which such proceeds become
immediately available to the Agent prior to 12:00 Noon, New York City
time, (i) in the case of a Bid Loan, at the rate per annum applicable
thereto and (ii) in the case of a Committed Loan, at the rate per annum
applicable to Base Rate Loans hereunder, in either case based upon a year
of 360 days. Nothing in this paragraph (a) shall relieve any Bank of any
obligation it may have hereunder to make any Loan or prejudice any rights
which the Company may have against any Bank as a result of any default by
such Bank hereunder.
(b) The Agent shall be entitled to assume that the Company has made
all payments due hereunder from the Company on the due date thereof unless it
receives notification prior to any such due date from the Company that the
Company does not intend to make any such payment, it being understood that no
such notice shall relieve the Company of any of its obligations under this
Agreement. If the Agent distributes any payment to a Bank hereunder in the
belief that the Company has paid to the Agent the amount thereof but the Company
has not in fact paid to the Agent such amount, such Bank shall pay to the Agent
on demand (which shall be made by facsimile or personal delivery) an amount
equal to the amount of the payment made by the Agent to such Bank, together with
interest thereon for each day that elapses from and including the date on which
the Agent made such payment to but excluding the Business Day on which the
amount of such payment is returned to the Agent at its Payment Office in
immediately available funds prior to 12:00 Noon, New York City time, at the
Federal Funds Rate for each such day, based upon a year of 360 days. If the
amount of such payment is not returned to the Agent in immediately available
funds within three Business Days after demand by the Agent, such Bank shall pay
to the Agent on demand an amount calculated in the manner specified in the
preceding sentence after substituting the term "Base Rate" for the term "Federal
Funds Rate". A certificate of the Agent submitted to any Bank with respect to
amounts owing under this Section 12.4(b) shall be conclusive absent demonstrable
error.
Section 12.5. Exculpation. The Agent shall be entitled to rely upon
advice of counsel concerning legal matters, and upon this Agreement
and any Note, security agreement, schedule, certificate, statement,
report, notice or other writing which it believes to be genuine or
to have been presented by a proper person. Neither the Agent nor any
of its directors, officers, employees or agents shall (i) be
responsible for any recitals, representations or warranties
contained in, or for the execution, validity, genuineness,
effectiveness or enforceability of, this Agreement, any Note or any
other instrument or document delivered hereunder or
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in connection herewith, (ii) be deemed to have knowledge of an Event
of Default or Unmatured Event of Default until after having received
actual notice thereof from the Company or a Bank, (iii) be under any
duty to inquire into or pass upon any of the foregoing matters, or
to make any inquiry concerning the performance by the Company or any
other obligor of its obligations or (iv) in any event, be liable as
such for any action taken or omitted by it or them, except for its
or their own gross negligence or willful misconduct. The agency
hereby created shall in no way impair or affect any of the rights
and powers of, or impose any duties or obligations upon, the Agent
in its individual capacity.
Section 12.6. Credit Investigation. Each Bank acknowledges, and
shall cause each Assignee or Participant to acknowledge in its
assignment or participation agreement with such Bank, that it has
(i) made and will continue to make such inquiries and has taken and
will take such care on its own behalf as would have been the case
had the Loans been made directly by such Bank or other applicable
Person to the Company without the intervention of the Agent or any
other Bank and (ii) independently and without reliance upon the
Agent or any other Bank, and based on such documents and information
as it has deemed appropriate, made and will continue to make its own
credit analysis and decisions relating to this Agreement. Each Bank
agrees and acknowledges, and shall cause each Assignee or
Participant to agree and acknowledge in its assignment or
participation agreement with such Bank, that the Agent makes no
representations or warranties about the creditworthiness of the
Company or any other party to this Agreement or with respect to the
legality, validity, sufficiency or enforceability of this Agreement
or any Note.
Section 12.7. CUSA and Affiliates. CUSA and each of its successors
as Agent shall have the same rights and powers hereunder as any
other Bank and may exercise or refrain from exercising the same as
though it were not the Agent, and CUSA and any such successor and
its Affiliates may accept deposits from, lend money to and generally
engage, and continue to engage, in any kind of business with the
Company or any Affiliate thereof as if CUSA or such successor were
not the Agent hereunder.
Section 12.8. Resignation. The Agent may resign as such at any time
upon at least 30 days' prior notice to the Company and the Banks. In
the event of any such resignation, Banks having an aggregate
Percentage of more than 50% shall as promptly as practicable appoint
a successor Agent from among the Banks reasonably acceptable to the
Company (no such acceptance being required if an Event of Default
has occurred and is continuing). If no successor Agent shall have
been so appointed, and shall have accepted such appointment, within
30 days after the retiring Agent's giving of notice of resignation,
then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent from among the Banks reasonably acceptable to the
Company (no such acceptance being required if an Event of Default
has occurred and is continuing), which shall be a commercial bank
organized under the laws of the United States of America or of any
State thereof or under the laws of another country which is doing
business in the United States of America and having a combined
capital, surplus and undivided profits of at least $1,000,000,000.
Upon the acceptance of any appointment as Agent hereunder by a
successor agent, such successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of
the retiring Agent, and the retiring Agent shall be discharged from
all further duties and obligations under this Agreement. After any
retiring Agent's
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resignation hereunder as Agent, the provisions of this Section 12
shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
Section 12.9. The Register; the Notes.
(a) The Agent, acting on behalf of the Company, shall maintain a
register for the inscription of the names and addresses of Banks and the
Commitments and Loans of each Bank from time to time (the "Register"). The
Company, the Banks, and the Agent may treat each Person whose name is inscribed
in the Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Company, the Agent, or any
Bank at any reasonable time and from time to time upon reasonable prior notice.
(b) The Agent shall inscribe in the Register the Commitments and the
Bid Loans and Committed Loans from time to time of each Bank, the amount of each
Bank's participation in outstanding Bid Loans and Committed Loans and each
repayment or prepayment in respect of the principal amount of the Bid Loans and
Committed Loans of each Bank, the principal amount owing from time to time by
the Company in respect of each Bid Loan and each Committed Loan to each Bank of
such Loans and the dates on which the Loan Period for each such Loan shall begin
and end. Any such inscription shall be conclusive and binding on the Company and
each Bank, absent manifest or demonstrable error; provided that failure to make
any such inscription, or any error in such inscription, shall not affect any of
the Company's obligations in respect of the applicable Loans. The inscription in
the Register of the principal amount owing from time to time by the Company in
respect of each Loan shall constitute an unconditional and irrevocable covenant
by the Company in favor of the Person whose name is so inscribed as the Bank in
respect of such Loan that the Company will make all payments of principal and
interest in respect of the Loan in accordance with this Agreement, make all
other payments required by this Agreement to be made by it in respect of such
Loan and otherwise perform all of its obligations under this Agreement in full
and by the due date.
(c) Each Bank shall record on its internal records the amount of
each Loan made by it and each payment in respect thereof; provided that in the
event of any inconsistency between the Register and any Bank's records, the
inscriptions in the Register shall govern, absent manifest or demonstrable
error.
(d) If so requested by any Bank by written notice to the Company
(with a copy to Agent) at least two Business Days prior to the Closing Date or
at any time thereafter, the Company shall execute and deliver to such Bank
(and/or, if so specified in such notice, any Person who is an assignee of such
Bank pursuant to Section 13.4.1 hereof) promptly after receipt of such notice, a
Bid Note or Committed Note, as applicable, substantially in the form of Exhibit
D or Exhibit E hereto, respectively.
SECTION 13. GENERAL.
Section 13.1. Waiver; Amendments. No delay on the part of the Agent,
any Bank, or the holder of any Loan in the exercise of any right,
power or remedy shall operate as a waiver thereof, nor shall any
single or partial exercise by any of them of any right, power or
remedy preclude other or further exercise thereof, or
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the exercise of any other right, power or remedy. No amendment,
modification or waiver of, or consent with respect to, any provision
of this Agreement or the Notes shall in any event be effective
unless the same shall be in writing and signed and delivered by the
Agent and by Banks having an aggregate Percentage of not less than
the aggregate Percentage expressly designated herein with respect
thereto or, in the absence of such designation as to any provision
of this Agreement or the Notes, by the Required Banks, and then any
amendment, modification, waiver or consent shall be effective only
in the specific instance and for the specific purpose for which
given. No amendment, modification, waiver or consent (i) shall
extend (other than in accordance with Section 13.8(a)) or increase
the amount of the Commitments, extend the maturity of any Commitment
or Loan, change the definition of "Required Banks" or "Percentage"
in Section 1, amend or modify Section 4.1, or change any of the
defined terms used in Section 4.1, amend or modify Section 4.4,
Section 4.5, Section 4.7, Section 6.2(a), Section 11.1.1, Section
11.1.8, or this Section 13.1 or otherwise change the aggregate
Percentage required to effect an amendment, modification, waiver or
consent without the written consent of all Banks, (ii) shall modify
or waive any of the conditions precedent specified in Section 10.1
for the making of any Loan without the written consent of the Bank
which is to make such Loan or (iii) shall extend the scheduled
maturity or reduce the principal amount of, or rate of interest on,
reduce or waive any fee hereunder or extend the due date for or
waive any amount payable under, any Loan without the written consent
of the holder of the Commitment or Loan adversely affected thereby.
Amendments, modifications, waivers and consents of the type
described in clause (iii) of the preceding sentence with respect to
Bid Loans or Bid Notes may be effected with the written consent of
the holder of such Bid Loans or Bid Notes and no consent of any
other Bank or other holder shall be required in connection
therewith. No provisions of Section 12 shall be amended, modified or
waived without the Agent's written consent.
Section 13.2. Notices.
(a) Subject to paragraphs (b) through (f) of this Section, all
notices, requests and demands to or upon the respective parties hereto to be
effective shall be either (x) in writing (including by telecopy, encrypted or
unencrypted) or (y) as and to the extent set forth in Section 13.2(b) and in the
proviso to this Section 13.2(a) and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered or, in the case
of telecopy or e-mail notice, when received, addressed to the Company, the Agent
or such Bank (or other holder) at its address shown across from its name on
Schedule III hereto or at such other address as it may, by written notice
received by the other parties to this Agreement, have designated as its address
for such purpose; provided, that notices hereunder shall not be given or made to
the Company by e-mail; provided, further, that any notice, request or demand to
or upon the Agent or the Banks pursuant to Sections 2.2(a), 3.2(a) or 5.2 shall
not be effective until received.
(b) The Company hereby agrees that, unless otherwise requested by
the Agent, it will provide to the Agent all information, documents and other
materials that it is obligated to furnish to the Agent pursuant to this
Agreement, including, without limitation, all notices, requests, financial
statements, financial and other reports, certificates and other information
materials, but excluding any such communication that (i) relates to a request
for a new, or a
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conversion of an existing, borrowing or other extension of credit (including any
election of an interest rate or interest period relating thereto), (ii) relates
to the payment of any principal or other amount due under this Agreement prior
to the scheduled date therefor, (iii) provides notice of any Unmatured Event of
Default or Event of Default under this Agreement, (iv) is required to be
delivered to satisfy any condition precedent to the effectiveness of this
Agreement and/or any borrowing or other extension of credit hereunder or (v)
initiates or responds to legal process (all such non-excluded information being
referred to herein collectively as the "Communications") by transmitting the
Communications in an electronic/soft medium (with such Communications to contain
any required signatures) in a format acceptable to the Agent to
xxxxxxxxxxxxxxx@xxxxxxxxx.xxx (or such other e-mail address designated by the
Agent from time to time); provided that if requested in writing by any Bank, the
Company will provide to such Bank a hard copy of its financial statements
required to be provided hereunder.
(c) Each party hereto agrees that the Agent may make the
Communications available to the Banks by posting the Communications on
IntraLinks or another relevant website, if any, to which each Bank and the Agent
have access (whether a commercial, third-party website or whether sponsored by
the Agent) (the "Platform"). Nothing in this Section 13.2 shall prejudice the
right of the Agent to make the Communications available to the Banks in any
other manner specified in this Agreement.
(d) The Company hereby acknowledges that certain of the Banks may be
"public-side" Banks (i.e., Banks that do not wish to receive material non-public
information with respect to the Company or its securities) (each, a "Public
Bank"). The Borrower hereby agrees that (i) Communications that are to be made
available on the Platform to Public Banks shall be clearly and conspicuously
marked "PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall
appear prominently on the first page thereof, (ii) by marking Communications
"PUBLIC," the Company shall be deemed to have authorized the Agent and the Banks
to treat such Communications as either publicly available information or not
material information (although it may be sensitive and proprietary) with respect
to the Company or its securities for purposes of United States Federal and state
securities laws, (iii) all Communications marked "PUBLIC" are permitted to be
made available through a portion of the Platform designated "Public Bank," and
(iv) the Agent shall be entitled to treat any Communications that are not marked
"PUBLIC" as being suitable only for posting on a portion of the Platform not
designated "Public Bank."
(e) Each Bank agrees that e-mail notice to it (at the address
provided pursuant to the next sentence and deemed delivered as provided in the
next paragraph) specifying that Communications have been posted to the Platform
shall constitute effective delivery of such Communications to such Bank for
purposes of this Agreement. Each Bank agrees (i) to notify the Agent in writing
(including by electronic communication) from time to time to ensure that the
Agent has on record an effective e-mail address for such Bank to which the
foregoing notice may be sent by electronic transmission and (ii) that the
foregoing notice may be sent to such e-mail address.
(f) Each party hereto acknowledges that (i) the distribution of
material through an electronic medium is not necessarily secure and that there
are confidentiality and other risks associated with such distribution, (ii) the
Platform is provided "as is" and "as available," (iii)
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none of the Agent, its affiliates nor any of their respective officers,
directors, employees, agents, advisors or representatives (collectively, the
"Citigroup Parties") warrants the adequacy, accuracy or completeness of the
Communications or the Platform , and each Citigroup Party expressly disclaims
liability for errors or omissions in any Communications or the Platform, and
(iv) no warranty of any kind, express, implied or statutory, including, without
limitation, any warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other code
defects, is made by any Citigroup Party in connection with any Communications or
the Platform.
Section 13.3. Computations. Where the character or amount of any
asset or liability or item of income or expense is required to be
determined, or any consolidation or other accounting computation is
required to be made, for the purpose of this Agreement, such
determination or calculation shall, at any time and to the extent
applicable and except as otherwise specified in this Agreement, be
made in accordance with generally accepted accounting principles in
the United States of America applied on a basis consistent with
those in effect as at the date of the Company's audited financial
statements referred to in Section 8.4. If there should be any
material change in generally accepted accounting principles in the
United States of America after the date hereof which materially
affects the financial covenants in this Agreement, the parties
hereto agree to negotiate in good faith appropriate revisions of
such covenants (it being understood, however, that such covenants
shall remain in full force and effect in accordance with their
existing terms pending the execution by the Company and the Required
Banks of any such amendment).
Section 13.4. Assignments; Participations. Each Bank may assign, or
sell participations in, its Loans and its Commitment to one or more
other Persons in accordance with this Section 13.4 (and the Company
consents to the disclosure of any information obtained by any Bank
in connection herewith to any actual or prospective Assignee or
Participant).
Section 13.4.1. Assignments. Any Bank may with the written consents
of the Company and the Agent (which consents will not be unreasonably withheld
or delayed) at any time assign and delegate to one or more Eligible Assignees
(any Person to whom an assignment and delegation is made being herein called an
"Assignee") all or any fraction of such Bank's Loans and Commitment (which
assignment and delegation shall be of a constant, and not a varying, percentage
of such assigning Bank's Loans and Commitment); each such assignment of a Bank's
Commitment shall be in the minimum amount of $10,000,000 or in integral
multiples of $1,000,000 in excess thereof; provided, that any such Assignee will
comply, if applicable, with the provisions contained in the first sentence of
Section 6.4(b) and in Section 6.4(c), Section 6.4(d), Section 6.4(e) and Section
6.4(g) and shall be deemed to have made, on the date of the effectiveness of
such assignment and delegation, the representation and warranty set forth in the
second sentence of Section 6.4(b); and provided, further, that the Company and
the Agent shall be entitled to continue to deal solely and directly with such
assigning Bank in connection with the interests so assigned and delegated to an
Assignee until such assigning Bank and/or such Assignee shall have:
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(i) given written notice of such assignment and delegation, together
with payment instructions, addresses and related information with respect
to such Assignee, substantially in the form of Exhibit I, to the Company
and the Agent;
(ii) provided evidence satisfactory to the Company and the Agent
that, as of the date of such assignment and delegation, the Company will
not be required to pay any costs, fees, taxes or other amounts of any kind
or nature with respect to the interest assigned in excess of those payable
by the Company with respect to such interest prior to such assignment;
(iii) paid to the Agent for the account of the Agent a processing
fee of $3,500; and
(iv) provided to the Agent evidence reasonably satisfactory to the
Agent that the assigning Bank has complied with the provisions of the last
sentence of Section 12.6.
Upon receipt of the foregoing items and the consents of the Company and the
Agent, (x) the Assignee shall be deemed automatically to have become a party
hereto and, to the extent that rights and obligations hereunder have been
assigned and delegated to such Assignee, such Assignee shall have the rights and
obligations of a Bank hereunder and under the other instruments and documents
executed in connection herewith and (y) the assigning Bank, to the extent that
rights and obligations hereunder have been assigned and delegated by it, shall
be released from its obligations hereunder. The Agent may from time to time (and
upon the request of the Company or any Bank after any change therein shall)
distribute a revised Schedule I indicating any changes in the Banks party hereto
or the respective Percentages of such Banks and update the Register. Within five
Business Days after the Company's receipt of notice from the Agent of the
effectiveness of any such assignment and delegation, if requested by the
Assignee in accordance with Section 12.9, the Company shall execute and deliver
to the Agent (for delivery to the relevant Assignee) new Notes in favor of such
Assignee and, if the assigning Bank has retained Loans and a Commitment
hereunder and if so requested by such Bank in accordance with Section 12.9,
replacement Notes in favor of the assigning Bank (such Notes to be in exchange
for, but not in payment of, the Notes previously held by such assigning Bank).
Each such Note shall be dated the date of the predecessor Notes. The assigning
Bank shall promptly xxxx the predecessor Notes, if any, "exchanged" and deliver
them to the Company. Any attempted assignment and delegation not made in
accordance with this Section 13.4.1 shall be null and void.
The foregoing consent requirement shall not be applicable in the
case of, and this Section 13.4.1 shall not restrict, any assignment or other
transfer by any Bank of all or any portion of such Bank's Loans or Commitment to
(i) any Federal Reserve Bank (provided, that such Federal Reserve Bank shall not
be considered a "Bank" for purposes of this Agreement) or (ii) any Affiliate of
such Bank (provided, that the assigning or transferring Bank shall give notice
of such assignment or transfer to the Agent and the Company). Further, the
foregoing consent requirement of the Company shall not be applicable if an Event
of Default has occurred and is continuing.
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The Company, each Bank, and each Assignee acknowledge and agree that
after receipt by the Agent of the items and consents required by this Section
each Assignee shall be considered a Bank for all purposes of this Agreement
(including without limitation Sections 6.4, 7.1, 7.4, 13.5 and 13.6) and by its
acceptance of an assignment herein, each Assignee agrees to be bound by the
provisions of this Agreement (including without limitation Section 6.4).
Section 13.4.2. Participations. Any Bank may at any time sell to one
or more commercial banks or other Persons (any such commercial bank or other
Person being herein called a "Participant") participating interests in any of
its Loans, its Commitment or any other interest of such Bank hereunder;
provided, however, that
(a) no participation contemplated in this Section 13.4.2 shall
relieve such Bank from its Commitment or its other obligations hereunder;
(b) such Bank shall remain solely responsible for the performance of
its Commitment and such other obligations hereunder and such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Company hereunder, including the right to approve any amendment,
modification or waiver of any provision of this Agreement (subject to
Section 13.4.2(d) below);
(c) the Company and the Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and
obligations under this Agreement;
(d) no Participant, unless such Participant is an Affiliate of such
Bank, or is itself a Bank, shall be entitled to require such Bank to take
or refrain from taking any action hereunder, except that such Bank may
agree with any Participant that such Bank will not, without such
Participant's consent, take any actions of the type described in the third
sentence of Section 13.1;
(e) the Company shall not be required to pay any amount under
Sections 4.1, 6.4 or 7.1 that is greater than the amount which the Company
would have been required to pay had no participating interest been sold;
(f) no Participant may further participate any interest in any
Committed Loan (and each participation agreement shall contain a
restriction to such effect);
(g) to the extent permitted by applicable law, each Participant
shall be considered a Bank for purposes of Section 6.4, Section 7.1,
Section 7.4, Section 13.5 and Section 13.6 and by its acceptance of a
participating interest in any Loan, Commitment or any other interest of a
Bank hereunder, each Participant agrees (i) that it is bound by, and
agrees to deliver all documentation required under, the provisions of
Section 6.2(b) and Section 6.4 as if such Participant were a Bank, and
(ii) it is not entitled to any benefits under Section 6.4 or Section 7.1
unless it is in full compliance with all requirements imposed on Banks
under any of those Sections; and
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(h) such Bank shall have provided to the Agent evidence reasonably
satisfactory to the Agent that such Bank has complied with the provisions
of the last sentence of Section 12.6.
Any Bank (a "Granting Bank") may grant to a special purpose funding
vehicle organized under the laws of the United States of America or any State
thereof (a "SPV") of such Granting Bank, identified as such in writing from time
to time by the Granting Bank to the Agent and the Company, the option to provide
to the Company all or any part of its Loans that such Granting Bank would
otherwise be obligated to make to the Company pursuant to this Agreement;
provided, that (i) such SPV shall be deemed to be a Participant for purposes of
this Section 13.4.2, (ii) nothing herein shall constitute a commitment by any
SPV to make any Loan, (iii) if a SPV elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Bank shall
be obligated to make such Loan pursuant to the terms hereof and (iv) the Company
shall not be required to pay any amount under Sections 13.5 or 13.6 that is
greater than the amount which the Company would have been required to pay had
such SPV not provided the Company with any part of any Loan of such Granting
Bank. The making of a Loan by a SPV hereunder shall utilize the Commitment of
the Granting Bank to the same extent, and as if, such Loan were made by such
Granting Bank. Each party hereto hereby agrees that no SPV shall be liable for
any indemnity or similar payment obligation under this Agreement (any indemnity,
liability or other payment obligation, including but not limited to any tax
liabilities that occur by reason of such funding by the SPV, shall remain the
obligation of the Granting Bank). In furtherance of the foregoing, each party
hereto agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPV, it
will not institute against, or join any other Person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything contrary contained in this Section 13.4.2,
any SPV may (i) with notice to, but without the prior written consent of, the
Company and the Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to the Granting Bank providing
liquidity and/or credit support to or for the account of such SPV to support the
funding or maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPV. This paragraph may not be amended without the written
consent of any SPV at the time holding all or any part of any Loans under this
Agreement (which consent shall not be unreasonably withheld or delayed).
Section 13.5. Costs, Expenses and Taxes. The Company agrees to pay
on demand (a) all reasonable out-of-pocket costs and expenses of the
Agent (including the reasonable fees and out-of-pocket expenses of
counsel for the Agent (and of local counsel, if any, who may be
retained by said counsel)), in connection with the preparation,
execution, delivery and administration of this Agreement, the Notes
and all other instruments or documents provided for herein or
delivered or to be delivered hereunder or in connection herewith and
(b) all out-of-pocket costs and expenses (including reasonable
attorneys' fees and legal expenses and allocated costs of staff
counsel) incurred by the Agent and each Bank in connection with the
enforcement of this Agreement, the Notes or any such other
instruments or documents. Each Bank agrees to reimburse the Agent
Credit Agreement
-49-
for such Bank's pro rata share (based upon its respective Percentage
determined at the time such reimbursement is sought) of any such
costs or expenses incurred by the Agent on behalf of all the Banks
and not paid by the Company other than any fees and out-of-pocket
expenses of counsel for the Agent which exceed the amount which the
Company has agreed with the Agent to reimburse. In addition, the
Company agrees to pay, and to hold the Agent and the Banks harmless
from all liability for, any stamp or other Taxes which may be
payable in connection with the execution and delivery of this
Agreement, the borrowings hereunder, the issuance of the Notes (if
any) or the execution and delivery of any other instruments or
documents provided for herein or delivered or to be delivered
hereunder or in connection herewith. All obligations provided for in
this Section 13.5 shall survive repayment of the Loans, cancellation
of the Notes or any termination of this Agreement.
Section 13.6. Indemnification. In consideration of the execution and
delivery of this Agreement by the Agent and the Banks, the Company
hereby agrees to indemnify, exonerate and hold each of the Banks,
the Agent, the Affiliates of each of the Banks and the Agent, and
each of the officers, directors, employees and agents of the Banks,
the Agent and the Affiliates of each of the Banks and the Agent
(collectively herein called the "Bank Parties" and individually
called a "Bank Party") free and harmless from and against any and
all actions, causes of action, suits, losses, liabilities, damages
and expenses, including, without limitation, reasonable attorneys'
fees and disbursements (collectively herein called the "Indemnified
Liabilities"), incurred by the Bank Parties or any of them as a
result of, or arising out of, or relating to (i) this Agreement, the
Notes (if any) or the Loans or (ii) the direct or indirect use of
proceeds of any of the Loans or any credit extended hereunder,
except for any such Indemnified Liabilities arising on account of
such Bank Party's gross negligence or willful misconduct, and if and
to the extent that the foregoing undertaking may be unenforceable
for any reason, the Company hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
The Company agrees not to assert any claim against the Bank Parties
on any theory of liability, for consequential, indirect, special or
punitive damages arising out of or otherwise relating to this
Agreement and the Notes (if any) or any of the transactions
contemplated hereby or thereby or the actual or proposed use of the
proceeds of the Loans. All obligations provided for in this Section
13.6 shall survive repayment of the Loans, cancellation of the Notes
(if any) or any termination of this Agreement.
Section 13.7. Regulation U. Each Bank represents that it in good
faith is not relying, either directly or indirectly, upon any margin
stock (as such term is defined in Regulation U promulgated by the
Board of Governors of the Federal Reserve System) as collateral
security for the extension or maintenance by it of any credit
provided for in this Agreement.
Section 13.8. Extension of Termination Dates; Removal of Banks;
Substitution of Banks. (a) Not more than 60 days nor less than 45 days prior to
the then-effective Termination Date, the Company may, at its option, request all
the Banks then party to this Agreement to extend their scheduled Termination
Dates by an additional one year period, or such shorter period as agreed upon by
the Company and the Agent, by means of a letter, addressed to the Agent (who
shall promptly deliver such letter to each Bank), substantially in the form of
Exhibit J. Each Bank electing (in its sole discretion) so to extend its
scheduled Termination Date shall execute and deliver not earlier than the 30th
day nor later than the 20th day prior to the then-
Credit Agreement
-50-
effective Termination Date counterparts of such letter to the Company and the
Agent, who shall notify the Company, in writing, of the Banks' decisions no
later than 15 days prior to the existing Termination Date, whereupon (unless
Banks with an aggregate Percentage in excess of 25% decline to extend their
respective scheduled Termination Dates, in which event the Agent shall notify
all the Banks thereof and no such extension shall occur) such Bank's scheduled
Termination Date shall be extended, effective only as of the date that is such
Bank's then-current scheduled Termination Date, to the date that is one year, or
such shorter period as agreed as provided above, after such Bank's then-current
scheduled Termination Date. Any Bank that declines or fails to respond to the
Company's request for such extension shall be deemed to have not extended its
scheduled Termination Date.
(b) With respect to any Bank (i) on account of which the Company is
required to make any deductions or withholdings or pay any additional amounts,
as contemplated by Section 6.4, (ii) on account of which the Company is required
to pay any additional amounts, as contemplated by Section 7.1, (iii) for which
it is illegal to make a LIBOR Rate Loan, as contemplated by Section 7.3 or (iv)
which has declined to extend such Bank's scheduled Termination Date and Banks
with an aggregate Percentage in excess of 75% have elected to extend their
respective Termination Dates, the Company may in its discretion, upon not less
than 30 days' prior written notice to the Agent and each Bank, remove such Bank
as a party hereto. Each such notice shall specify the date of such removal
(which shall be a Business Day and, if such Bank has any outstanding Bid Loans,
shall (unless otherwise agreed by such Bank) be on or after the last day of the
Loan Period for the Bid Loan of such Bank having the latest maturity date),
which shall thereupon become the scheduled Termination Date for such Bank.
(c) In the event that any Bank does not extend its scheduled
Termination Date pursuant to subsection (a) above or is the subject of a notice
of removal pursuant to subsection (b) above, then, at any time prior to the
Termination Date for such Bank (a "Terminating Bank"), the Company may, at its
option, arrange to have one or more other Eligible Assignees (which may be a
Bank or Banks, or if not a Bank, shall be acceptable to the Agent (such
acceptance not to be unreasonably withheld or delayed), and each of which shall
herein be called a "Successor Bank") with the approval of the Agent (such
approval not to be unreasonably withheld or delayed) succeed to all or a
percentage of the Terminating Bank's outstanding Loans, if any, and rights under
this Agreement and assume all or a like percentage (as the case may be) of such
Terminating Bank's undertaking to make Loans pursuant hereto and other
obligations hereunder (as if (i) in the case of any Bank electing not to extend
its scheduled Termination Date pursuant to subsection (a) above, such Successor
Bank had extended its scheduled Termination Date pursuant to such subsection (a)
and (ii) in the case of any Bank that is the subject of a notice of removal
pursuant to sub-section (b) above, no such notice of removal had been given by
the Company); provided, that prior to replacing any Terminating Bank with any
Successor Bank, the Company shall have given each Bank which has agreed to
extend its Termination Date an opportunity to increase its Commitment by all or
a portion of the Terminating Banks' Commitments. Such succession and assumption
shall be effected by means of one or more agreements supplemental to this
Agreement among the Terminating Bank, the Successor Bank, the Company and the
Agent. On and as of the effective date of each such supplemental agreement (i)
each Successor Bank party thereto shall be and become a Bank for all purposes of
this Agreement and to the same extent as any other Bank hereunder and shall be
bound by and entitled to the benefits of this Agreement in the same manner as
any other Bank and (ii) the
Credit Agreement
-51-
Company agrees to pay to the Agent for the account of the Agent a processing fee
of $2,500 for each such Successor Bank which is not a Bank.
(d) On the Termination Date for any Terminating Bank, such
Terminating Bank's Commitment shall terminate and the Company shall pay in full
all of such Terminating Bank's Loans (except to the extent assigned pursuant to
subsection (c) above) and all other amounts payable to such Bank hereunder
(including any amounts payable pursuant to Section 7.4 on account of such
payment); provided, that if an Event of Default or Unmatured Event of Default
exists on the date scheduled as any Terminating Bank's Termination Date, payment
of such Terminating Bank's Loans shall be postponed to (and, for purposes of
calculating facility fees under Section 4.4, utilization fees under Section 4.5
and determining the Required Banks (except as provided below), but for no other
purpose, such Terminating Bank's Commitment shall continue until) the first
Business Day thereafter on which (i) no Event of Default or Unmatured Event of
Default exists (without regard to any waiver or amendment that makes this
Agreement less restrictive for the Company, other than as described in clause
(ii) below) or (ii) the Required Banks (which for purposes of this subsection
(d) shall be determined based upon the respective Percentages and aggregate
Commitments of all Banks other than any Terminating Bank whose scheduled
Termination Date has been extended pursuant to this proviso) waive or amend the
provisions of this Agreement to cure all existing Events of Default or Unmatured
Events of Default or agree to permit any borrowing hereunder notwithstanding the
existence of any such event. In the event that CUSA or its Affiliates shall
become a Terminating Bank, the Required Banks with the consent of the Company
(which consent shall not be unreasonably withheld or delayed) shall appoint
another Bank or other Person as Agent, which shall have all of the rights and
obligations of the Agent upon the effective date of and pursuant to an agreement
supplemental hereto among the Company and the Banks, and thereupon CUSA, as
Agent, shall be relieved from its obligations as Agent hereunder, it being
understood that the provisions of Section 12 shall inure to the benefit of CUSA
as to any actions taken or omitted to be taken by it while it was Agent under
this Agreement. If no such successor Agent shall be appointed within 30 days of
the Termination Date of the Agent, then the Agent shall, on behalf of the Banks,
appoint a successor Agent in accordance with the provisions set forth in Section
12.8 for a resigning Agent.
(e) To the extent that all or a portion of any Terminating Bank's
obligations are not assumed pursuant to subsection (c) above, the Aggregate
Commitment shall be reduced on the applicable Termination Date and each Bank's
percentage of the reduced Aggregate Commitment shall be revised pro rata to
reflect such Terminating Bank's absence. The Agent shall distribute a revised
Schedule I indicating such revisions promptly after the applicable Termination
Date and update the Register accordingly. Such revised Schedule I shall be
deemed conclusive in the absence of demonstrable error.
(f) The Agent agrees to use reasonable commercial efforts to assist
the Company in locating one or more commercial banks or other financial
institutions to replace any Terminating Bank prior to such Terminating Bank's
Termination Date.
Section 13.9. Captions. Section captions used in this Agreement are
for convenience only and shall not affect the construction of this
Agreement.
Credit Agreement
-52-
Section 13.10. Governing Law; Severability. THIS AGREEMENT AND EACH
NOTE SHALL BE A CONTRACT MADE UNDER, GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. All obligations of
the Company and the rights of the Agent, the Banks and any other
holders of the Loans expressed herein or in the Notes (if any) shall
be in addition to and not in limitation of those provided by
applicable law. Whenever possible each provision of this Agreement
shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall
be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or
the remaining provisions of this Agreement.
Section 13.11. Counterparts; Effectiveness. This Agreement may be
executed in any number of counterparts and by the different parties
on separate counterparts and each such counterpart shall be deemed
to be an original, but all such counterparts shall together
constitute but one and the same Agreement. When counterparts of this
Agreement executed by each party shall have been lodged with the
Agent (or, in the case of any Bank as to which an executed
counterpart shall not have been so lodged, the Agent shall have
received facsimile or other written confirmation of execution of a
counterpart hereof by such Bank), this Agreement shall become
effective as of the date hereof and the Agent shall so inform all of
the parties hereto.
Section 13.12. Further Assurances. The Company agrees to do such
other acts and things, and to deliver to the Agent and each Bank
such additional agreements, powers and instruments, as the Agent or
any Bank may reasonably require or deem advisable to carry into
effect the purposes of this Agreement or to better assure and
confirm unto the Agent and each Bank their respective rights, powers
and remedies hereunder.
Section 13.13. Successors and Assigns. This Agreement shall be
binding upon the Company, the Banks and the Agent and their
respective successors and assigns, and shall inure to the benefit of
the Company, the Banks and the Agent and the respective successors
and assigns of the Banks and the Agent. The Company may not assign
any of its rights or delegate any of its duties under this Agreement
without the prior written consent of all of the Banks.
Section 13.14. Waiver of Jury Trial. THE COMPANY, THE AGENT AND EACH
BANK HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY
NOTE OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH
THIS AGREEMENT, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL
BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
Section 13.15. No Fiduciary Relationship. The Company acknowledges
that neither the Agent nor any Bank has any fiduciary relationship
with, or fiduciary duty to, the Company arising out of or in
connection with this Agreement, the Notes (if any) or the
transactions contemplated hereby, and the relationship
Credit Agreement
-53-
between the Agent and the Banks, on the one hand, and the Company,
on the other, in connection herewith or therewith is solely that of
creditor and debtor. This Agreement does not create a joint venture
among the parties.
Section 13.16. USA PATRIOT Act. Each Bank hereby notifies the
Company that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Act"), it is required to obtain, verify and record information
that identifies the Company, which information includes the name and
address of the Company and other information that will allow such
Bank to identify the Company in accordance with the Act.
Credit Agreement
-54-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
INTERNATIONAL LEASE FINANCE
CORPORATION
By: /s/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title:
Chief Financial Officer
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
Credit Agreement
-55-
AGENT
CITICORP USA, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Credit Agreement
-56-
BANKS
CITICORP USA, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Credit Agreement
-00-
XXXX XX XXXXXXX, N.A.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Principal
Credit Agreement
-58-
CREDIT SUISSE FIRST BOSTON, Acting
Through its Cayman Islands Branch
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Associate
Credit Agreement
-59-
THE GOVERNOR AND COMPANY OF
THE BANK OF SCOTLAND
By: /s/ Xxxxxx Xxxx
------------------------------------
Name: Xxxxxx Xxxx
Title: Director Aircraft Finance
Credit Agreement
-60-
JPMORGAN CHASE BANK
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
Credit Agreement
-61-
HSBC BANK USA, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Credit Agreement
-62-
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By: /s/ Chimie T. Pemba
------------------------------------
Name: Chimie T. Pemba
Title: Authorized Signatory
Credit Agreement
-63-
ABN AMRO BANK N.V.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Group Vice President
By: /s/ Xxxxxxx XxXxxxx
------------------------------------
Name: Xxxxxxx XxXxxxx
Title: Assistant Vice President
Credit Agreement
-64-
SOCIETE GENERALE
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Credit Agreement
-65-
XXXXXXX XXXXX BANK USA
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Director
Credit Agreement
-66-
BARCLAYS BANK PLC
By: /s/ Xxxxxx X. XxXxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Associate Director
Credit Agreement
-67-
DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
Credit Agreement
-68-
XXXXXX BROTHERS BANK, FSB
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Credit Agreement
-69-
UBS LOAN FINANCE LLC
By: /s/ Winslowe Ogbourne
------------------------------------------
Name: Winslowe Ogbourne
Title: Associate Director Banking Products
Services, US
By: /s/ Xxxxxxx Xxxxx-XxXxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxx-XxXxxxxxx
Title: Associate Director
Banking Products Services US
Credit Agreement
-70-
BANCO SANTANDER CENTRAL HISPANO, S.A.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Credit Agreement
-71-
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
Credit Agreement
-72-
BNP PARIBAS
By: /s/ Xxxxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Credit Agreement
-00-
XXX XXXX XX XXXX XXXXXX
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Credit Agreement
-74-
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Xxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxx Xxxx
Title: Senior Vice President
Credit Agreement
-00-
XXXXXXXXXXX XX, XXX XXXX AND
GRAND CAYMAN BRANCHES
By: /s/ Christian Jagenberg
------------------------------------
Name: Christian Jagenberg
Title: SVP and Manager
By: /s/ Yangling J. Si
------------------------------------
Name: Yangling J. Si
Title: AVP
Credit Agreement
-76-
CAJA MADRID
By: /s/ Xxxxxx de las Xxxxxxxx
------------------------------------------------
Name: Xxxxxx de las Xxxxxxxx
Title: Head of Industrialized Markets
By: /s/ Xxx Xxxxxx Lareu
------------------------------------------------
Name: Xxx Xxxxxx Lareu
Title: Head of Intl Origination and Syndications
Credit Agreement
-77-
LLOYDS TSB BANK PLC
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
Financial Institutions, USA
R091
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
Financial Institutions, USA
B059
Credit Agreement
-78-
MIZUHO CORPORATE BANK, LTD.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
Credit Agreement
-00-
XXX XXXX XX XXX XXXX
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Credit Agreement
-80-
SVENSKA HANDELSBANKEN
By: /s/ X.X. Xxxxx
------------------------------------
Name: X.X. Xxxxx
Title: Senior Vice President
By: /s/ Niclas Fjalltoft
------------------------------------
Name: Niclas Fjalltoft
Title: Vice President
Credit Agreement
-81-
UFJ BANK LIMITED
By: /s/ Xxxxxxx X. Small
------------------------------------
Name: Xxxxxxx X. Small
Title: Senior Vice President
Credit Agreement
-82-
XXXXXX XXXXXXX FINANCING, INC.
By: /s/ Xxxx Xxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxx Xxxxxxxxxx
Title: Vice President
Credit Agreement
-00-
XXXXX XXXX XX XXXXXX
By: /s/ Xxxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxxx Xxxx
Title: Senior Manager
Credit Agreement
-84-
SANPAOLO IMI S.P.A.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: G.M.
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: S.V.P.
Credit Agreement
-85-
STANDARD CHARTERED BANK
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Assistant Vice President
Credit Agreement
Schedule I
Schedule of Banks
BANK COMMITMENT
--------------------------------------------------- ------------
Citicorp USA, Inc. $120,000,000
Bank of America, N.A. $110,000,000
Credit Suisse First Boston $110,000,000
The Governor and Company of The Bank of Scotland $110,000,000
JPMorgan Chase Bank $110,000,000
HSBC Bank USA, National Association $110,000,000
The Bank of Tokyo-Mitsubishi, Ltd., New York Branch $ 85,000,000
ABN AMRO Bank N.V. $ 85,000,000
Societe Generale $ 85,000,000
Xxxxxxx Xxxxx Bank USA $ 85,000,000
Barclays Bank PLC $ 85,000,000
Deutsche Bank AG New York Branch $ 85,000,000
Xxxxxx Brothers Bank, FSB $ 85,000,000
UBS Loan Finance LLC $ 85,000,000
Banco Santander Central Hispano, S.A. $ 85,000,000
Wachovia Bank, N.A. $ 85,000,000
BNP Paribas $ 85,000,000
The Bank of Nova Scotia $ 66,666,666
Sumitomo Mitsui Banking Corporation $ 66,666,666
Commerzbank AG $ 66,666,666
Caja Madrid $ 41,666,667
Lloyds TSB Bank plc $ 33,333,333
Mizuho Corporate Bank, Ltd. $ 16,666,667
The Bank of New York $ 16,666,667
Svenska Handelsbanken $ 16,666,667
UFJ Bank Limited $ 16,666,667
Xxxxxx Xxxxxxx Financing, Inc. $ 16,666,667
Royal Bank of Canada $ 16,666,667
SanPaolo IMI S.p.A. $ 11,666,667
Standard Chartered Bank $ 8,333,333
Schedule I
Schedule II
Fees and Margins
(in basis points)
Level I Level II Level III Level IV Level V Level VI
Pricing Pricing Pricing Pricing Pricing Pricing
------- -------- --------- -------- ------- --------
Facility Fee 9.0 10.0 11.0 12.5 15.0 20.0
Margins:
on LIBOR 6.0 15.0 24.0 32.5 45.0 55.0
Rate Loans
on Base 0.0 0.00 0.0 0.0 0.0 0.0
Rate Loans
Competitive As bid by As bid by As bid by As bid by As bid by As bid by
Bid Option the Banks the Banks the Banks the Banks the Banks the Banks
Utilization Fee
Rate:
In excess of 5.0 5.0 5.0 5.0 5.0 10.0
33.33%
For purposes of this Schedule, the following terms have the
following meanings:
"Level I Pricing" means the pricing during any period during
which the Company's long-term senior unsecured debt is rated AA or higher
by S&P or Aa2 or higher by Moody's.
"Level II Pricing" means the pricing during any period during
which (i) the Company's long-term senior unsecured debt is rated AA- or
higher by S&P or Aa3 or higher by Moody's and (ii) Level I Pricing does
not apply.
"Level III Pricing" means the pricing during any period during
which (i) the Company's long-term senior unsecured debt is rated A+ or
higher by S&P or A1 or higher by Moody's and (ii) neither Level I Pricing
nor Level II Pricing applies.
"Level IV Pricing" means the pricing during any period during
which (i) the Company's long-term senior unsecured debt is rated A or
higher by S&P or A2 or higher by Moody's and (ii) none of Level I Pricing,
Level II Pricing and Level III Pricing applies.
Schedule II
-2-
"Level V Pricing" means the pricing during any period during
which (i) the Company's long-term senior unsecured debt is rated A- or
higher by S&P or A3 or higher by Moody's and (ii) none of Level I Pricing,
Level II Pricing, Level III Pricing and Level IV Pricing applies.
"Level VI Pricing" means the pricing during any period during
which no other Pricing Level applies.
"Moody's" means Xxxxx'x Investors Service, Inc. or any
successor corporation thereto.
"Pricing Level" means Level I Pricing, Level II Pricing, Level
III Pricing, Level IV Pricing, Level V Pricing and Level VI Pricing.
"S & P" means Standard & Poor's Ratings, a division of McGraw
Hill, Inc., or any successor corporation thereto.
Any change in fees or margins by reason of a change in S&P's rating
or Xxxxx'x rating shall become effective on the date of announcement or
publication by the respective rating agencies of a change in such rating or, in
the absence of such announcement or publication, on the effective date of such
changed rating.
If S&P's rating and Xxxxx'x rating differ by more than one rating
level, then the applicable Pricing Level shall be one rating level higher than
the Pricing Level resulting from the application of the lower of such ratings.
Schedule II
Schedule III
Address for Notices
PARTY ADDRESS FOR NOTICES
----------------------------------------------------- ----------------------------------------------------------
Company Xxxxxx X. Xxxxxx
00000 Xxxxxxxxxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Telex: 69-1400 INTERLEAS BVHL
Agen 0 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Citicorp USA, Inc., as Bank 0 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Bank of America, N.A. Xxxxxx Xxxxxx
Principal
000 Xxxx Xx
00xx Xxxxx
Xxxxxx, XX 00000
xxxxxx.x.xxxxxx@xxxxxxxxxxxxx.xxx
Phone: 000-000-0000
Fax: 000-000-0000
Credit Suisse First Boston, Acting Through its Cayman Xx Xxxxxxxxx
Islands Branch Eleven Xxxxxxx Xxx.
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
The Governor and Company of the Bank of Scotland Xxxx Xxxxxx
000 Xxxxxxxxxxx
Xxxxx 0
Xxxxxx XX0X 0XX
Tel: 000 0000 0000
Fax: 000 0000 0000
JPMorgan Chase Bank Xxxxxx Xxxxx
0000 Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
HSBC Bank USA, National Association 000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Tel: 000 000 0000
Schedule III
-2-
Fax: 000 000 0000
e-mail: xxxxxxx.x.xxxxxxx@xx.xxxx.xxx
The Bank of Tokyo-Mitsubishi, Ltd.,
New York Branch
ABN AMRO Bank N.V.
Societe Generale
Xxxxxxx Xxxxx Bank USA Xxxxx Xxxxxx
00 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
e-mail: xxxxx_xxxxxx@xx.xxx
Barclays Bank PLC
Deutsche Bank AG New York Branch Attn: Xxxx Xxxxx
Portfolio Manager - North American Insurance Companies
Deutsche Bank Securities 00 Xxxx Xxxxxx Xxx Xxxx, XX 00000
(000) 000-0000; (000) 000-0000 (Fax)
Xxxxxx Brothers Bank, FSB
UBS Loan Finance LLC
Banco Santander Central Hispano, S.A.
Wachovia Bank, N.A.
BNP Paribas Xxxx Xxxxxxxxx
000 Xxxxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: Xxxx.xxxxxxxxx@xxxxxxxx.xxxxxxxxxx.xxx
The Bank of Nova Scotia
Sumitomo Mitsui Banking Corporation
Commerzbank XX Xxxxxxxxx Jagenberg
Los Angeles Branch
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Caja Madrid Xx. Xxxxxx Xxxxx Xxxxxxxxxx
P(Degree)de la Castellana, 000 0xx Xxxxx
28046 Madrid
Tel: x00 00 000 0000
Fax: x00 00 000 0000/28
Lloyds TSB Bank plc
Mizuho Corporate Bank, Ltd.
The Bank of New York
Svenska Handelsbanken Svenska Handelsbanken
Schedule III
-3-
000 Xxxxx Xxxxxx - 4th floor
New York, N. Y. 10022-7218
Attn: X. Xxxxxx Xxxxx
Tel (000) 000-0000
FAX (000) 000-0000
UFJ Bank Limited UFJ Bank Limited
Att: Xxxxxx Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxxxx Xxxxxxx Financing, Inc. Bank of Montreal
000 XxXxxxx Xxxxxx, 00 Xxxx
Xxxxxxx, XX 00000
Attn: Client Services
Royal Bank of Canada Xxxxx Xxxxxxx
Royal Bank of Canada New York Branch
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
SanPaolo IMI S.p.A. SanPaolo IMI LA Office
Attention: Xxxxxx Xxxxx
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
SanPaolo IMI NY Branch
Attention: Xxxxxx Xxxxxxx
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Standard Chartered Bank
Schedule III
