SUPER PRIORITY DEBTOR IN POSSESSION AND EXIT
CREDIT AND GUARANTEE AGREEMENT, dated as of August 21, 2006, among
NORTHWEST AIRLINES CORPORATION, a Delaware corporation, a debtor
and debtor in possession under Chapter 11 of the Bankruptcy Code
(as defined below) or such entity that becomes a guarantor and a
loan party hereunder pursuant to Section 5.5 herein, as applicable
(“ Holdings ”), NORTHWEST AIRLINES HOLDINGS
CORPORATION, a Delaware corporation, a debtor and debtor in
possession under Chapter 11 of the Bankruptcy Code or such entity
that becomes a guarantor and a loan party hereunder pursuant to
Section 5.5 herein, as applicable (“ NWAC ”),
NWA INC., a Delaware corporation, a debtor and debtor in possession
under Chapter 11 of the Bankruptcy Code or such entity that becomes
a guarantor and a loan party hereunder pursuant to Section 5.5
herein, as applicable (“ NWA ”), NORTHWEST
AIRLINES, INC., a Minnesota corporation, a debtor and debtor in
possession under Chapter 11 of the Bankruptcy Code or such entity
that becomes the borrower and loan party hereunder pursuant to
Section 5.5 herein, as applicable (the “ Borrower
”), the several banks and other financial institutions or
entities from time to time parties to this Agreement (the “
Lenders ”), CITICORP USA, INC., as
Administrative Agent for both the DIP Facilities and the Exit
Facilities (in such capacity, the “ Administrative
Agent ”), JPMORGAN CHASE BANK, N.A., as Syndication Agent
for both the DIP Facilities and the Exit Facilities (in such
capacity, the “ Syndication Agent ”), DEUTSCHE
BANK SECURITIES INC., as Documentation Agent for both the DIP
Facilities and the Exit Facilities (in such capacity, the “
Documentation Agent ”), MORGAN STANLEY SENIOR FUNDING,
INC., as Co-Syndication Agent for both the DIP Facilities and the
Exit Facilities (in such capacity, the “ Co-Syndication
Agent ”), CALYON NEW YORK BRANCH, as Co-Documentation
Agent for both the DIP Facilities and the Exit Facilities (in such
capacity, the “ Co-Documentation Agent ”), U.S.
BANK NATIONAL ASSOCIATION, as Agent for both the DIP Facilities and
the Exit Facilities (in such capacity, the “ Agent
”), CITIGROUP GLOBAL MARKETS INC. and J.P. MORGAN SECURITIES
INC., as Joint Lead Arrangers and Joint Bookrunners for the DIP
Facilities (in such capacities, the “ DIP Joint Lead
Arrangers ”), CITIGROUP GLOBAL MARKETS INC. and DEUTSCHE
BANK SECURITIES INC., as Joint Lead Arrangers and Joint Bookrunners
for the Exit Facilities (in such capacity, the “ Exit
Joint Lead Arrangers ”, and collectively with the DIP
Joint Lead Arrangers, the “ Joint Lead Arrangers
”), MORGAN STANLEY SENIOR FUNDING, INC. and CALYON NEW YORK
BRANCH, as Co-Arrangers for both the DIP Facilities and the Exit
Facilities (in such capacities, the “ Co-Arrangers
”).
W I T N
E S S E T H :
WHEREAS,
capitalized terms used in these recitals shall have the respective
meanings set forth for such terms in Section 1.1 of this
Agreement;
WHEREAS, on
September 14, 2005 (“ Petition Date ”),
Holdings, NWAC, NWA, the Borrower and certain of the
Borrower’s domestic Subsidiaries filed voluntary petitions
for relief (collectively, the “ Cases ”) under
Chapter 11 of the Bankruptcy Code with the United States Bankruptcy
Court for the Southern District of New York (the “
Bankruptcy Court ”);
WHEREAS , from and after the Petition
Date, Holdings, NWAC, NWA, the Borrower and such Subsidiaries are
continuing to operate their respective businesses and manage their
respective properties as debtors in possession under Sections 1107
and 1108 of the Bankruptcy Code;
WHEREAS, Lenders
have agreed to extend certain credit facilities to the Borrower, in
an aggregate amount not to exceed $1,225,000,000, consisting of
$1,050,000,000 in aggregate principal amount of Term Loans and up
to $175,000,000 in aggregate principal amount of
Revolving
Commitments, the
proceeds of which will be used (i) to repay in full all, but not
less than all, amounts outstanding under the Borrower’s
existing pre-petition Second Amended and Restated Credit and
Guarantee Agreement, dated as of April 15, 2005 (as amended to the
date hereof, the “ Pre-Petition Credit Agreement
”), among Borrower, as borrower thereunder, Guarantors, as
guarantors thereunder, the lenders party thereto and JPMorgan Chase
Bank, N.A., as administrative agent thereunder, (ii) to pay
related transaction costs, fees and expenses, (iii) to provide
working capital from time to time for the Borrower and its
Subsidiaries, and (iv) for other general corporate
purposes;
WHEREAS, Borrower
has agreed to secure all of its Obligations by granting security
interests in the Route Collateral pursuant to the Route Security
Agreement; and
WHEREAS, the
Lenders have agreed to grant an option to Northwest Airlines, Inc.
to cause the DIP Facilities to be converted to the Exit Facilities
subject to terms and conditions set forth herein.
NOW, THEREFORE,
the parties hereto hereby agree as follows:
SECTION 1 DEFINITIONS
1.1
Defined Terms . As used in this Agreement, the terms
listed in this Section 1.1 shall have the respective meanings set
forth in this Section 1.1.
“ ABR
”: for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 0.5%. For the
purposes hereof “ Prime Rate ” shall mean the
rate of interest per annum publicly announced from time to time by
the Reference Lender as its prime rate in effect at its principal
office in New York City (the Prime Rate not being intended to be
the lowest rate of interest charged by the Reference Lender in
connection with extensions of credit to debtors). Any change
in the ABR due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
“ ABR
Loans ”: Loans the rate of interest applicable to
which is based upon the ABR.
“
Accession and Novation Agreement ”: as
defined in Section 5.5(a).
“
Acquisition ”: an acquisition, the consideration
for which is paid (in whole or in part) in cash (it being
understood that any deferred purchase price or assumed Indebtedness
due within one year after any such acquisition shall be treated as
paid in cash as of the date of such acquisition), by any Person of
(a) the Capital Stock of any other Person which, upon consummation
of such acquisition, becomes a Subsidiary of such Person, (b)
assets constituting all or substantially all of the assets of any
other Person, (c) assets constituting an operating unit or division
of any other Person, (d) one or more Routes in a single transaction
or series of related transactions to the extent that the cash
consideration for the acquisition of such Routes exceeds
$50,000,000, (e) Intellectual Property used in connection with the
operation of an air passenger or cargo business by any other Person
purchased outside the ordinary course of business from any such
Person in a single transaction or series of related transactions to
the extent that the cash consideration for the acquisition of such
Intellectual Property exceeds $25,000,000 and (f) Flight Equipment
from any other Person (other than a manufacturer) in a single
transaction or series of related transactions to the extent the
cash consideration for the acquisition of such Flight
2
Equipment exceeds
$100,000,000, including any such acquisition in connection with the
establishment of a low cost air passenger business.
“
Administrative Agent ”: as defined in the
preamble to this Agreement.
“
Affiliate ”: as to any Person, any other Person
that, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of
this definition, “control” of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of
directors (or persons performing similar functions) of such Person
or (b) direct or cause the direction of the management and policies
of such Person, whether by contract or otherwise.
“
Agent ”: as defined in the preamble to this
Agreement.
“
Agents ”: the collective reference to the
Syndication Agent, the Documentation Agent, the Co-Syndication
Agent, the Co-Documentation Agent, the Agent, the Co-Arrangers, the
Joint Lead Arrangers, the Administrative Agent, the Collateral
Agent and, for purposes of Section 9 only, the Issuing
Lender.
“
Aggregate Exposure ”: with respect to any Lender
at any time, an amount equal to the sum of (i) the aggregate
then unpaid principal amount of such Lender’s Term Loans plus
(ii) the amount of such Lender’s Revolving Commitment
then in effect or, if the Revolving Commitments have been
terminated, the amount of such Lender’s Revolving Extensions
of Credit then outstanding.
“
Aggregate Exposure Percentage ”: with respect to
any Lender at any time, the ratio (expressed as a percentage) of
such Lender’s Aggregate Exposure at such time to the
Aggregate Exposure of all Lenders at such time.
“
Agreement ”: this Super Priority Debtor in
Possession and Exit Credit and Guarantee Agreement, as amended,
supplemented or otherwise modified from time to time.
“
Applicable Rate ”:
(a) with respect
to Loans outstanding prior to the Exit Facilities Conversion Date,
(i) 1.50%, in the case of ABR Loans, and (ii) 2.50%, in the
case of Eurodollar Loans, and
(b) with respect
to Loans outstanding on and after the Exit Facilities Conversion
Date, (i) at all times when the Total Appraised Value Ratio is
equal to or less than 1.75 to 1.00, (x) 2.00%, in the case of ABR
Loans and (y) 3.00% in the case of Eurodollar Loans, and
(ii) at all times when the Total Appraised Value Ratio is
greater than 1.75 to 1.00, (x) 1.50%, in the case of ABR Loans and
(Y) 2.50% in the case of Eurodollar Loans, provided
that each of the Applicable Rates set forth in this clause (b)
shall be increased by 0.50% during such time as the Exit Facilities
are assigned a credit rating of less than Ba3 by Moody’s or
less than BB- by S&P.
“
Allocable Prepayment Percentage ”: at any time,
the ratio (expressed as a percentage) of (a) the Aggregate
Exposure of all Lenders to (b) the sum of the Aggregate Exposure of
all Lenders plus the aggregate outstanding principal amount of any
Pari Passu Obligations at such time.
3
“
Applicable Appraisal Discount Rate ”: on the
date of any valuation done in connection with an Appraisal, 11.5%;
provided that, to the extent the Treasury Rate as determined
immediately prior to such Appraisal is greater than 8%, the
Applicable Appraisal Discount Rate will be increased by an amount
equal to the difference between such Treasury Rate and 8%; and
provided further that, to the extent the Treasury Rate as
determined immediately prior to such Appraisal is less than 3%, the
Applicable Appraisal Discount Rate will be decreased by an amount
equal to the difference between 3% and such Treasury
Rate.
“
Application ”: an application, in such form
as the Issuing Lender may reasonably specify from time to time,
requesting the Issuing Lender to open a Letter of
Credit.
“
Appraisal ”: an appraisal, dated the date of
delivery thereof to the Lenders pursuant to the terms of this
Agreement, by Morton, Beyer and Agnew or another independent
appraisal firm satisfactory at the time of such Appraisal to the
Borrower and the Administrative Agent, setting forth the current
fair market value of the Pacific Routes (as described in the
Appraisal) utilizing the Applicable Appraisal Discount Rate as of
the date of such appraisal of each Pool Asset or proposed Pool
Asset, as the case may be.
“
Appraised Value ”: as of any date of
determination, the value as of such date of each Pool Asset or
proposed Pool Asset, as the case may be, as set forth in the most
recently delivered Appraisal.
“
Assignee ”: as defined in Section
11.6(c).
“
Assignment and Acceptance ”: an Assignment and
Acceptance, substantially in the form of Exhibit B.
“
Assignor ”: as defined in Section
11.6(c).
“
Available Revolving Commitment ”: as to any
Lender at any time, an amount equal to the excess, if any, of (a)
such Lender’s Revolving Commitment then in effect over
(b) such Lender’s Revolving Extensions of Credit then
outstanding.
“
Avoidance Actions ”: rights, claims or
causes of action arising under Sections 544, 547, 548 or 550 of the
Bankruptcy Code and the proceeds thereof, excluding Avoidance
Actions relating to obligations paid with the proceeds of Loans and
the Liens securing such obligations.
“
Authorized Officer ”: as to any Loan Party, the
Chief Executive Officer, the President, the Chief Financial Officer
or any Vice President and above who reports directly or indirectly
to the Chief Financial Officer of such Loan Party.
“ Base
Number of Japanese Foreign Slots ”: at any time,
the sum of (a) the total number of Japanese Foreign Slots at Narita
Airport owned by the Borrower as of the Closing Date, plus (b) any
Japanese Foreign Slots at Narita Airport acquired by the Borrower
after the Closing Date.
“
Benefitted Lender ”: as defined in Section
11.7(a).
“
Bankruptcy Code ”:
Title 11 of the United States Code entitled
“Bankruptcy,” as applicable to the Cases, as now and
hereafter in effect, or any applicable successor statute.
4
“
Bankruptcy Court ”: as defined in the recitals
to this Agreement.
“
Board ”: the Board of Governors of the Federal
Reserve System of the United States (or any successor).
“
Borrower ”: as defined in the preamble to this
Agreement.
“
Borrowing Date ”: (a) with respect to the Term
Loans, the Closing Date, and (b) with respect to the Revolving
Loans, the Closing Date and, at all times on or after the Exit
Facilities Conversion Date, any Business Day specified by the
Borrower as a date on which the Borrower requests the Lenders to
make Revolving Loans hereunder in accordance with Section
2.5.
“
Business Day ”: a day other than a Saturday,
Sunday or other day on which commercial banks in New York City or
Minneapolis, Minnesota are authorized or required by law to close,
provided , that with respect to notices and determinations
in connection with, and payments of principal and interest on,
Eurodollar Loans, such day is also a day for trading by and between
banks in Dollar deposits in the interbank eurodollar
market.
“ Capital
Lease Obligations ”: as to any Person, the
obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are
required to be classified and accounted for as capital leases on a
balance sheet of such Person under GAAP and, for the purposes of
this Agreement, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in
accordance with GAAP.
“ Capital
Stock ”: any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants,
rights or options to purchase any of the foregoing.
“
Cases ”: as defined in the recitals to this
Agreement.
“ Cash
Liquidity ”: at any time, the sum of (a)
unrestricted cash and cash equivalents of Holdings and its
Subsidiaries at such time and (b) unrestricted short term
investments of Holdings and its Subsidiaries at such
time.
“
Carve-Out ” : means the following
claims: (a) quarterly fees pursuant to 28 U.S.C. §
1930(a)(6), (b) fees payable to the clerk of the Bankruptcy Court
and any agent thereof, (c) fees and disbursements incurred after a
Carve-Out Event by the Loan Parties’ professionals (other
than the Loan Parties’ ordinary course professionals) and the
professionals of the Committee retained prior to the Exit
Facilities Conversion Date (collectively, the “
Professionals ”) and, together with any expenses of
members of the Committee, allowed by order of the Bankruptcy Court
in the aggregate amount not to exceed $30,000,000, and (d) all fees
and expenses of the kind described in the preceding clauses (a),
(b) and (c) of this definition incurred prior to a Carve-Out Event
but not yet paid to the extent such fees and expenses are approved
by the Bankruptcy Court, subject to the right of the Administrative
Agent, the Lenders and any other party in interest to object to the
award of such fees and expenses; provided , however ,
that the Carve-Out shall not include, apply to, or be available for
any fees or expenses incurred by any party, including the Loan
Parties, any Committee or any Professional in connection with the
investigation, initiation or prosecution of any Claims or Defenses
(as defined in the DIP Order) against
5
the Agents or the
Lenders in their respective capacities as such; provided ,
further , that as long as no Event of Default shall occur
and be continuing which entitles the Lenders or any Agent to
exercise remedies against the Collateral and prior to the Exit
Facilities Conversion Date, the Loan Parties shall be permitted to
pay compensation and reimbursement of expenses allowed and payable
under Sections 328, 330 and 331 of the Bankruptcy Code or otherwise
pursuant to an order of the Bankruptcy Court, as the same may be
due and payable, and the same shall not reduce the Carve-Out,
subject to the right of the Administrative Agent, the Lenders and
any other party in interest to object to such payments;
provided , further , that in the event of any
inconsistency in the definition of “Carve-Out” between
the provisions of this Agreement and the DIP Order, the provisions
of the DIP Order shall govern.
“
Carve-Out Event ” as defined in Section 8.
“
Carve-Out Event Notice ” as defined in Section
8.
“
Certificated Air Carrier ”: a Citizen of the
United States holding a carrier operating certificate issued by the
Secretary of Transportation pursuant to Chapter 447 of Title 49,
for aircraft capable of carrying ten or more individuals or 6,000
pounds or more of cargo.
“
Citicorp ”: Citicorp USA, Inc.
“ Citizen
of the United States ”: shall have the meaning
provided in Section 40102(a)(15) of Title 49.
“
Claim ” : as defined in Section 101(5) of
the Bankruptcy Code.
“ Closing
Date ”: the date on which the conditions precedent
set forth in Sections 5.1 and 5.2 shall have been satisfied, which
date is August 21, 2006.
“
Code ”: the Internal Revenue Code of 1986, as
amended from time to time.
“
Co-Documentation Agent ”: as defined in the
preamble to this Agreement.
“
Co-Syndication Agent ”: as defined in the
preamble to this Agreement.
“
Collateral ”: any of the Pool Assets upon which
a Lien is purported to be created by any Security Document,
including, without limitation, all Route Collateral.
“
Collateral Agent ”: Citicorp, in its capacity as
Collateral Agent.
“
Commitment ”: as to any Lender, the sum of the
Term Commitment and the Revolving Commitment of such
Lender.
“
Committee ” : the official committee of
unsecured creditors appointed in the Cases pursuant to Section 1102
of the Bankruptcy Code on September 30, 2005.
“
Commitment Fee Rate ”: 0.50% per
annum.
6
“
Commonly Controlled Entity ”: an entity, whether
or not incorporated, that is under common control with the Borrower
within the meaning of Section 4001 of ERISA or is part of a group
that includes the Borrower and that is treated as a single employer
under Section 414 of the Code.
“
Compliance Certificate ”: a certificate
substantially in the form of Exhibit D (with such changes as may be
approved by the Administrative Agent).
“
Consolidated EBITDAR ”: for any period, without
duplication, the consolidated operating income of Holdings and its
Subsidiaries for such period (calculated on a consolidated basis in
accordance with GAAP and in a manner consistent with the
consolidated financial statements of Holdings and its Subsidiaries
for the period ended December 31, 2005) plus (i)
consolidated aircraft operating rental expenses of Holdings and its
Subsidiaries that were deducted in arriving at the amount of such
consolidated operating income for such period plus (ii)
amortization and depreciation that were deducted in arriving at the
amount of such consolidated operating income for such period
plus (iii) interest income of Holdings and its Subsidiaries
during such period plus (iv) all government reimbursements
in cash for losses incurred as a result of developments affecting
the aviation industry (including, without limitation, terrorist
acts and epidemic diseases) plus (v) any non-recurring
non-cash charges of Holdings and its Subsidiaries recorded during
such period (excluding any such charge incurred in the ordinary
course of business that constitutes an accrual of or a reserve for
cash charges for any future period), all as determined on a
consolidated basis in accordance with GAAP plus
(vi) cash or non-cash non-recurring charges resulting from the
Borrower’s fleet restructuring during the Cases and
professional fees and other direct bankruptcy costs related to the
Cases, provided , however , that cash payments made
in such period or in any future period in respect of such noncash
charges (excluding any such charge incurred in the ordinary course
of business that constitutes an accrual of or a reserve for cash
charges for any future period) shall be subtracted in calculating
Consolidated EBITDAR in the period when such payments are made, and
provided further that Consolidated EBITDAR shall be
calculated without giving effect to any acceleration of flight
equipment rental expense after the Closing Date required as a
result of the Borrower’s decision to remove an aircraft or
aircraft class from the operating fleet of the Borrower.
“
Consolidated Fixed Charges ”: for any period,
the total consolidated interest expense of Holdings and its
Subsidiaries for such period (calculated without regard to any
limitations on the payment thereof) plus , without
duplication, that portion of Capital Lease Obligations of Holdings
and its Subsidiaries representing the interest factor for such
period, plus the total consolidated aircraft operating
rental expenses of Holdings and its Subsidiaries for such period,
all as determined on a consolidated basis in accordance with GAAP,
provided that Consolidated Fixed Charges shall be calculated
without giving effect to any acceleration of flight equipment
rental expense after the Closing Date required as a result of the
Borrower’s decision to remove an aircraft or aircraft class
from the operating fleet of the Borrower.
“
Contingent Obligation ”: as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations (“
primary obligations ”) of any other Person (other than
Holdings or any of its Subsidiaries) (the “ primary
obligor ”), in any manner, whether directly or
indirectly, including any obligation of such Person, whether or not
contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of any such
primary obligation or (y) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of
the
7
primary obligor to
make payment of such primary obligation or (iv) otherwise to assure
or hold harmless the holder of such primary obligation against loss
in respect thereof, provided , however , that the
term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount
of the primary obligation in respect of which such Contingent
Obligation is made (or; if less, the maximum amount of such-primary
obligation for which such Person may be liable pursuant to the
terms of the instrument evidencing such Contingent Obligation) or,
if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such person in good
faith.
“
Contractual Obligation ”: as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such Person is
a party or by which it or any of its property is bound.
“
Coverage Test ”: at any time, the Total
Appraised Value Ratio shall not be less than 150% at such
time.
“
Currency Exchange Rate Protection Agreement ”:
any foreign currency exchange agreement, currency swap agreement or
other similar agreement or arrangement entered into for the purpose
of hedging foreign currency risk.
“
Default ”: any of the events specified in
Section 8, whether or not any requirement for the giving of notice,
the lapse of time, or both, has been satisfied.
“ DIP
Facilities ” : Facilities prior to the
Exit Facilities Conversion Date.
“ DIP
Order ” : an order (in substantially
the form of Exhibit F and otherwise in form and substance
reasonably satisfactory to the Administrative Agent) of the
Bankruptcy Court pursuant to Section 364 of the Bankruptcy Code
(i) approving this Agreement and the other Loan Documents,
including the granting of the super-priority claims and first
priority lien status, the waiver of rights under Section 506(c) of
the Bankruptcy Code and the payment of all fees constituting
Obligations hereunder, (ii) authorizing the indefeasible
payment in full of all (but not less than all) obligations under
the Pre-Petition Credit Agreement and related documents, including
all principal, interest, fees, prepayment premiums and expenses,
and the termination of all commitments thereunder and the
termination of all Liens securing the obligations thereunder,
(iii) modifying the automatic stay to permit the Loan Parties
to perform their obligations hereunder and the Lenders and the
Collateral Agent to exercise their rights and remedies in
accordance with Section 8 of this Agreement, and
(iv) authorizing the incurrence by the Loan Parties of
permanent post-petition secured and super-priority Indebtedness in
accordance with this Agreement, and as to which order no stay has
been entered and which has not been reversed, vacated or
overturned, and which order has not been amended, supplemented or
otherwise modified in any respect adverse to the Lenders without
the prior written consent of the Administrative Agent and from
which no appeal or motion to reconsider has been timely filed, or
if timely filed, such appeal or motion to reconsider has been
dismissed or denied unless the Administrative Agent waives such
requirement.
“
Discharged Rights and Obligations ”: as defined
in Section 5.5(a).
“
Disposed Japanese Foreign Slots ”: at any
time, the Japanese Foreign Slots at Narita Airport sold,
transferred, leased (so long as such lease remains in effect and
conveys to another Person
8
the right to
utilize the relevant Japanese Foreign Slot) or otherwise disposed
of by the Borrower after the Closing Date.
“
Disposition ”: with respect to any
property, any sale, lease, sale and leaseback, assignment,
conveyance, transfer or other disposition thereof (excluding,
however, the creation or imposition of any Lien). The terms
“ Dispose ” and “ Disposed of
” shall have correlative meanings.
“
Documentation Agent ”: as defined in the
preamble to this Agreement.
“
Dollars ” and “ $
”: dollars in lawful currency of the United
States.
“ DOT
”: the United States Department of
Transportation.
“
Eligible Transferee ”: a commercial bank,
financial institution, other “accredited investor” (as
defined in Regulation D of the Securities Act of 1933, as amended),
any Person that is engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business, or any Lender
Affiliate, other than an airline, a commercial air carrier, an air
freight forwarder, an entity engaged in the business of parcel
transport by air or other similar Person or a corporation or other
entity controlling, controlled by or under common control with such
an airline, commercial air carrier, air freight forwarder, entity
engaged in the business of parcel transport by air or other similar
Person.
“
Environmental Laws ”: any and all foreign,
Federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, requirements of
any Governmental Authority or other Requirements of Law (including
common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the
environment, as now or may at any time hereafter be in
effect.
“
ERISA ”: the Employee Retirement Income Security
Act of 1974, as amended from time to time.
“ ERISA
Affiliate ”: each trade or business (whether or not
incorporated) that together with Holdings or any of its
Subsidiaries would be deemed to be a “single employer”
within the meaning of Section 414(b), (c) or (o) of the
Code.
“
Eurocurrency Reserve Requirements ”: for any day
as applied to a Eurodollar Loan, the aggregate (without
duplication) of the maximum rates (expressed as a decimal fraction)
of reserve requirements in effect on such day (including basic,
supplemental, marginal and emergency reserves under any regulations
of the Board) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as “Eurocurrency
liabilities” in Regulation D of the Board) maintained by a
member bank of the Federal Reserve System.
“
Eurodollar Base Rate ”: with respect to each day
during each Interest Period pertaining to a Eurodollar Loan, the
rate per annum determined on the basis of the rate for deposits in
Dollars for a period equal to such Interest Period commencing on
the first day of such Interest Period appearing on page BBAM
on the Bloomberg Terminal screen (successor to Page 3750 of the
Telerate Service screen) as of 11:00 a.m., London time, two
Business Days prior to the beginning of such interest Period.
In the event that such rate does not appear on page BBAM on the
Bloomberg Terminal screen (or otherwise on such screen), the
“ Eurodollar Base Rate ” shall be determined by
reference to such other comparable
9
publicly available
service for displaying eurodollar rates as may be selected by the
Administrative Agent with the consent of the Borrower, or in the
absence of such availability or consent, by reference to the rate
at which the Administrative Agent is offered Dollar deposits at or
about 11:00 a.m., New York City time, two Business Days prior to
the beginning of such Interest Period in the interbank eurodollar
market where its eurodollar and foreign currency and exchange
operations are then being conducted for delivery on the first day
of such Interest Period for the number of days comprised
therein.
“
Eurodollar Loans ”: Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
“
Eurodollar Rate ”: with respect to each day
during each Interest Period pertaining to a Eurodollar Loan, a rate
per annum determined for such day in accordance with the following
formula (rounded upward to the nearest 1/100th of 1%):
|
|
Eurodollar Base
Rate
|
|
|
|
1.00 - Eurocurrency
Reserve Requirements
|
|
“
Eurodollar Tranche ”: the collective reference
to Eurodollar Loans under a particular Facility the then current
Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans
shall originally have been made on the same day).
“ Event
of Default ”: any of the events specified in
Section 8, provided that any requirement for the giving of
notice, the lapse of time, or both, has been satisfied.
“
Existing Loan Parties ”: as defined in
Section 5.5(a).
“ Exit
Facilities ” means the Facilities after the Exit
Facilities Conversion Date.
“ Exit
Facilities Conversion Date ” : the
first date on which the Exit Facilities Option has been exercised
and the conditions to exercising the Exit Facilities Option set
forth in Section 5.4 are satisfied.
“ Exit
Facilities Option ” : as defined in
Section 5.3.
“
Facility ”: each of (a) the Term Facility and
(b) the Revolving Facility, and “ Facilities ”
shall mean the collective reference to the Term Facility and the
Revolving Facility.
“ FAA
”: the Federal Aviation Administration.
“ Federal
Funds Effective Rate ”: for any day, 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 on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by the
Reference Lender from three federal funds brokers of recognized
standing selected by it.
“ Fifth
Freedom Rights ”: the operational right pursuant to
a bilateral treaty between the United States and a foreign country
to enplane passenger traffic and cargo in such foreign country and
deplane it in another foreign country.
10
“
Financial Outlook ”: the multi-year financial
outlook for Holdings and its consolidated Subsidiaries dated August
7, 2006.
“ First
Day Orders ” means all orders entered by the
Bankruptcy Court on the Petition Date or within five Business Days
of the Petition Date or based on motions filed on the Petition
Date.
“
Flight ”: (a) the completion of a non-stop
passenger and/or cargo flight utilizing the Pacific Routes from a
point of origin in the United States of America to a destination in
Japan or China and from a point of origin in Japan or China to a
destination in the United States of America and (b) the completion
of a non-stop passenger and/or cargo flight utilizing the Pacific
Routes (other than a flight described in clause (a) of this
definition).
“ Flight
Equipment ”: any aircraft, airframes or engines and
all parts incorporated or installed in or attached or made a part
of the aircraft, airframes or engines.
“ Foreign
Aviation Authorities ”: foreign or governmental,
regulatory or other agency or agencies which exercise jurisdiction
over the issuance or authorization to serve any foreign point on
each of the Pacific Routes and/or operations related to the Pacific
Routes and Supporting Route Facilities.
“ Foreign
Slot ”: all of the rights and operational
authority, now held or hereafter acquired, of the Borrower to
conduct one landing or takeoff operation during a specific hour or
other period at each non-U.S. airport necessary to operate a
Pacific Route, whether or not utilized by the Borrower.
“ Funding
Office ”: the office of the Administrative Agent
specified in Section 11.2 or such other office as may be specified
from time to time by the Administrative Agent as its funding office
by written notice to the Borrower and the Lenders.
“
GAAP ”: generally accepted accounting principles
in the United States as in effect from time to time.
“ Gate
Leaseholds ”: at any time, all of the right, title,
privilege, interest, and authority now or hereafter acquired or
held by the Borrower in connection with the right to use, operate
or occupy space in an airport terminal at which the Borrower
conducts scheduled operations for direct non-stop flights (or
flights originating at a Northwest Hub) to and within Asia using
the Pacific Routes to the extent such Gate Leasehold is utilized in
connection with the Pacific Routes at such time. To the
extent that the Borrower ceases to use any Gate Leasehold in
connection with the Pacific Routes, such Gate Leasehold shall
automatically cease to be a Gate Leasehold hereunder, including,
without limitation, for purposes of Section 7.5.
“
Governmental Authority ”: any nation or
government, any state or other political subdivision thereof, any
agency, authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative functions of or pertaining to
government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance
Commissioners).
“
Guarantors ”: the collective reference to
Holdings, NWAC and NWA.
11
“ Hedging
Obligations ”: as to any Person, all obligations
and liabilities of such Person under any Interest Rate Protection
Agreement or Currency Exchange Rate Protection Agreement, which are
payable upon the termination of such agreement. Hedging Obligations
under Specified Hedging Agreements shall be valued on a
mark-to-market basis from time to time pursuant to a methodology
agreed to among the Borrower, the applicable counterparty, and the
Administrative Agent.
“
Holdings ”: as defined in the preamble to
this Agreement.
“
Indebtedness ”: as to any Person, without
duplication, (i) all indebtedness (including principal, interest,
fees and charges) of such Person for borrowed money or for the
deferred purchase price of property or services but excluding trade
accounts payable and accrued expenses incurred in the ordinary
course of business, (ii) the maximum amount available to be drawn
under all letters of credit issued for the account of such Person
and all unpaid drawings in respect of such letters of credit, (iii)
all Indebtedness of the types described in clause (i), (ii), (iv),
(v), (vi) or (vii) of this definition secured by any Lien on any
property owned by such Person, whether or not such Indebtedness has
been assumed by such Person (to the extent of the value of the
respective property), (iv) Capital Lease Obligations, (v) all
obligations of such person to pay a specified purchase price for
goods or services, whether or not delivered or accepted,
i.e. take-or-pay and similar obligations, (vi) all
Contingent Obligations of such Person and (vii) all Hedging
Obligations under any Interest Rate Protection Agreement or any
Currency Exchange Rate Protection Agreement.
“
Intellectual Property ”: the collective
reference to all rights, priorities and privileges relating to
intellectual property, whether arising under United States,
multinational or foreign laws or otherwise, including copyrights,
copyright licenses, patents, patent licenses, trademarks, trademark
licenses, technology, know-how and processes, and all rights to sue
at law or in equity for infringement or other impairment thereof,
including the right to receive all proceeds and damages
therefrom.
“
Intercreditor Agreement ”: the Intercreditor
Agreement, dated as of the Closing Date, among the Administrative
Agent, U.S. Bank National Association, the PBGC, the Borrower and
the Guarantors, substantially in the form of Exhibit H, as the same
may be amended, supplemented or otherwise modified from time to
time.
“
Interest Payment Date ”: (a) as to any ABR Loan,
the fifteenth day of each March, June, September and December to
occur while such Loan is outstanding and the final maturity date of
such Loan, (b) as to any Eurodollar Loan having an Interest Period
of three months or less, the last day of such Interest Period, (c)
as to any Eurodollar Loan having an Interest Period longer than
three months, each day that is three months, or a whole multiple
thereof, after the first day of such Interest Period and the last
day of such Interest Period and (d) as to any Loan, the date of any
repayment or prepayment made in respect thereof.
“
Interest Period ”: as to any Eurodollar Loan,
(a) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the
Borrower in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto and (b) thereafter, each
period commencing on the last day of the next preceding Interest
Period applicable to such Eurodollar Loan and ending one, two,
three or six months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current Interest
Period with
12
respect thereto;
provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:
(A)
if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately
preceding Business Day;
(B)
the Borrower may not select an Interest Period for a particular
Facility that would extend beyond the anticipated final maturity
date of the relevant Loan;
(C)
any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month;
and
(D)
the Borrower shall select Interest Periods so as not to require a
payment or prepayment of any Eurodollar Loan during an Interest
Period for such Loan.
“
Interest Rate Protection Agreement ”: any
interest rate swap agreement, interest rate cap agreement, interest
collar agreement, interest rate hedging agreement or other similar
agreement or arrangement.
“
Investments ”: as defined in Section
7.10.
“ Issuing
Lender ”: Citicorp or any of its Affiliates or
any Lender appointed as Issuing Lender by the Borrower with the
consent of the Administrative Agent and such Lender, in its
capacity as an issuer of Letters of Credit.
“
Japanese Foreign Slots ”: any Foreign Slot in
Japan.
“ JFK
”: New York’s John F. Kennedy (JFK) International
Airport.
“ Joint
Lead Arrangers ”: as defined in the preamble to
this Agreement.
“ LAX
Two ”: LAX TWO CORP., a non-profit California
mutual benefit corporation.
“ L/C Fee
Payment Date ”: the last day of each March,
June, September and December and the last day of the Revolving
Commitment Period.
“ L/C
Obligations ”: at any time, an amount equal to
the sum of (a) the aggregate then undrawn and unexpired amount of
the then outstanding Letters of Credit and (b) the aggregate amount
of drawings under Letters of Credit that have not then been
reimbursed pursuant to Section 2.10.
“ L/C
Participants ”: the collective reference to
all the Revolving Lenders other than the Issuing Lender.
“ L/C
Subcommitment Amount
”: $75,000,000.
13
“
Lease ”: any operating lease entered into by any
Loan Party or any of its Subsidiaries as lessee
thereunder.
“
Lenders ”: as defined in the preamble to this
Agreement.
“ Lender
Affiliate ”: (a) any Affiliate of any Lender, (b)
any person that is administered or managed by any Lender and that
is engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary
course of its business and (c) with respect to any Lender which is
a fund that invests in commercial loans and similar extensions of
credit, any other fund that invests in commercial loans and similar
extensions of credit and is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such Lender
or investment advisor.
“ Letters
of Credit ”: as defined in Section
2.6(a)
“
Lien ”: any mortgage, pledge, hypothecation,
assignment, security deposit arrangement, encumbrance, lien
(statutory or other), charge or other security interest or security
agreement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement
and any capital lease having substantially the same economic effect
as any of the foregoing).
“
Loan ”: any loan made by any Lender pursuant to
this Agreement.
“ Loan
Documents ”: this Agreement, each Security
Document, any Specified Hedging Agreement and any Notes.
“ Loan
Parties ”: the Borrower and the
Guarantors.
“
Majority Facility Lenders ”: with respect to any
Facility, the holders of more than 50% of the aggregate unpaid
principal amount of the Loans then outstanding or committed, as the
case may be, under such Facility.
“
Material Adverse Effect ”: a material adverse
effect on the financial condition or results of operations of the
Borrower and its Subsidiaries taken as a whole.
“
Maturity Date ”: the earlier of
(a) the second anniversary of the Closing Date, if the Exit
Facilities Conversion Date does not occur on or before the second
anniversary of the Closing Date and (b) the seventh
anniversary of the Closing Date, if the Exit Facilities Conversion
Date occurs on or before the second anniversary of the Closing
Date.
“ Maximum
Amount ”: $1,225,000,000.
“
Moody’s ”: Moody’s Investors
Service, Inc.
“
Multiemployer Plan ”: a multiemployer plan as
defined in Section 4001(a)(3) of ERISA with respect to which the
Borrower or any of its ERISA Affiliates is an
“employer” as defined in Section 3(5) of
ERISA.
“
Non-Excluded Taxes ”: as defined in Section
3.10(a).
14
“
Non-U.S. Lender ”: as defined in Section
3.10(d).
“
Northwest Hub ”: as of the Closing Date, the
airports in Detroit, Michigan, Minneapolis, Minnesota, Memphis,
Tennessee and Narita Airport in Japan, and any other airport which
becomes a central connection point through which the Borrower
coordinates flights utilizing the Pacific Routes.
“
Notes ”: the collective reference to any
promissory note evidencing Loans.
“ NWA
”: as defined in the preamble to this
Agreement.
“
NWAC ”: as defined in the preamble to this
Agreement.
“
Obligations ”: the unpaid principal of and
interest on (including interest, fees and costs accruing after the
maturity of the Loans and Reimbursement Obligations and interest,
fees and costs accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest, fees or cost is
allowed in such proceeding) the Loans and all other obligations and
liabilities of the Borrower to any Agent or Lender (or, in the case
of Specified Hedging Agreements, any Lender Affiliate), whether
direct or indirect, absolute or contingent, due or to become due,
or now existing or hereafter incurred, which arise under, out of,
or in connection with, this Agreement, any other Loan Document, any
Letters of Credit, any Specified Hedging Agreement entered into
with any Lender or any Lender Affiliate or any other document made,
delivered or given in connection herewith or therewith, whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to any Agent or Lender that are required
to be paid by the Borrower pursuant hereto) or otherwise, including
all such Obligations as may be novated in accordance with Section
5.5; provided , however , that the aggregate amount
of all Hedging Obligations under all Specified Hedging Agreements
at any time outstanding that shall be included as
“Obligations” shall not exceed the lesser of
(i) $150,000,000 and (ii) the amount, if any, by which
(x) the Maximum Amount exceeds (y) the sum of
(1) the aggregate unpaid principal amount of the Term Loans
then outstanding plus (2) the aggregate amount of Revolving
Extensions of Credit of all Revolving Lenders then
outstanding.
“ Other
Taxes ”: any and all present or future stamp or
documentary taxes or any other property taxes, charges or similar
levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, this Agreement or any other
Loan Document.
“ Pacific
Countries ”: (i) countries bordering the Pacific
Ocean in Asia, North America, Australia and New Zealand, (ii)
islands surrounded by the Pacific Ocean and (iii) Thailand, Myanmar
(Burma), Laos and Cambodia.
“ Pacific
Routes ”: the Routes described on Schedule 7.5 and
any other Routes to the Pacific Countries that are acquired by or
granted to the Borrower.
“ Pari
Passu Commitments ”: at any time, the amount of
unfunded lending commitments under the Pari Passu Obligations at
such time.
“ Pari
Passu Obligations ”: as defined in the
Intercreditor Agreement.
15
“
Participant ”: as defined in Section
11.6(b).
“
PBGC ”: the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or any
successor).
“ Pension
Plan ”: any plan (other than a Multiemployer Plan)
described in Section 4021(a) of ERISA, and not excluded pursuant to
Section 4021(b) of ERISA, with respect to which any Loan Party or
any of its ERISA Affiliates is a “contributing sponsor”
as defined in Section 4001(a)(l3) of ERISA and each such plan for
the five year period immediately following the last date on which
the Borrower or any of its ERISA Affiliates contributed or had an
obligation to contribute to such plan.
“
Permitted Liens ”: as defined in Section
7.3.
“
Permitted Petition Date Liens ”: any
non-avoidable, valid and perfected Permitted Liens in existence on
the Petition Date and any non-avoidable valid Permitted Liens in
existence on the Petition Date that were perfected subsequent to
the Petition Date as permitted by Section 546(b) of the Bankruptcy
Code, in each case, other than the Specified Primed
Liens.
Person ”: an individual,
partnership, corporation, limited liability company, business
trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever
nature.
“
Petition Date ”: as defined in the recitals to
this Agreement.
“ Plan of
Reorganization ” means a joint chapter 11 plan of
reorganization in the Cases.
“ Pool
Assets ”: the assets of the Borrower listed on
Schedule 7.5 (as modified pursuant to Section 7.5) and any other
Pacific Routes and related Slots and Gate Leaseholds acquired by
the Borrower.
“
Pre-Petition Credit Agreement ”: as defined in
the recitals to this Agreement.
“ Rating
Agency ”: S&P or Moody’s, as the case may
be.
“
Reference Lender ”: Citibank, N.A.
“
Register ”: as defined in Section
11.6(d).
“
Regulation U ”: Regulation U of the Board as in
effect from time to time.
“
Reimbursement Obligation ”: the obligation
of the Borrower to reimburse a Issuing Lender pursuant to Section
2.10 for amounts drawn under Letters of Credit.
“ Removed
Pool Assets ”: assets which are no longer Pool
Assets as a result of having been involuntarily disposed of
(whether by loss of property due to theft, destruction,
confiscation, prohibition or use, any similar event or
otherwise).
“
Reorganization ”: with respect to any
Multiemployer Plan, the condition that such plan is in
reorganization within the meaning of Section 4241 of
ERISA.
16
“
Reorganized Loan Parties ”: as defined in
Section 5.5(a).
“
Replaced Lender ”: as defined in Section
3.13.
“
Replacement Lender ”: as defined in Section
3.13.
“
Replacement Route ”: a Route which has a value
at least equal to the Route which it is replacing and which shall
have been made subject to the pledge of the Route Security
Agreement pursuant to Section 1 thereof, subject to the
satisfactory review and approval of the Administrative
Agent.
“
Required Lenders ”: at any time, the holders of
more than 50% of the sum of (i) the aggregate unpaid principal
amount of the Term Loans then outstanding and (ii) the
Revolving Commitments then in effect or, if the Revolving
Commitments have been terminated, the Revolving Extensions of
Credit then outstanding..
“
Requirement of Law ”: as to any Person, the
Certificate of Incorporation and By-Laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any
of its property is subject.
“
Responsible Officer ”: as to any Loan Party, the
chief executive officer, president, chief financial officer,
treasurer or chief accounting officer of such Loan Party, but in
any event, with respect to financial matters, the chief financial
officer, treasurer or chief accounting officer of such Loan
Party.
“
Restricted Payments ”: as defined in
Section 7.6.
“
Revolving Commitment ”: as to any Lender,
the obligation of such Lender, if any, to make Revolving Loans and
participate in Letters of Credit in an aggregate principal and/or
face amount not to exceed the amount set forth under the heading
“Revolving Commitment” opposite such Lender’s
name on Schedule 1.1(b) to this Agreement or in the Assignment and
Assumption pursuant to which such Lender became a party hereto, as
the same may be changed from time to time pursuant to the terms
hereof. The original amount of the aggregate Revolving
Commitments of all Lenders is $175,000,000.
“
Revolving Commitment Period ”: the period,
if any, from and including the Exit Facilities Conversion Date to
the Termination Date.
“
Revolving Extensions of Credit ”: as to any
Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Loans held by such Lender then
outstanding, and (b) such Lender’s Revolving Percentage of
the L/C Obligations then outstanding.
“
Revolving Facility ”: the Revolving
Commitments and the extensions of credit made
thereunder.
“
Revolving Lender ”: each Lender that has a
Revolving Commitment or that holds a Revolving Loan.
“
Revolving Loans ”: as defined in Section
2.4.
17
“
Revolving Percentage ”: as to any Lender at
any time, the percentage which such Lender’s Revolving
Commitment then constitutes of the aggregate Revolving Commitments
of all Lenders (or, at any time after the Revolving Commitments
shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender’s Revolving
Extensions of Credit then outstanding constitutes of the aggregate
outstanding Revolving Extensions of Credit of all
Lenders).
“ Route
Collateral ”: all of the “Collateral”
as defined in the Route Security Agreements.
“ Route
Security Agreement ”: the Route Security Agreement,
dated as of the Closing Date, executed and delivered by the
Borrower in favor of the Collateral Agent, as the same may be
amended, supplemented or otherwise modified from time to
time.
“
Routes ”: the route authorities which the
Borrower holds or hereafter acquires the requisite authority to
operate pursuant to Title 49 including without limitation,
applicable frequencies, exemption and certificate authorities,
Fifth-Freedom Rights and “behind/beyond rights”,
whether or not utilized by the Borrower.
“
S&P ”: Standard & Poor’s Ratings
Services, a division of the McGraw-Hill Companies, Inc.
“ SEC
”: the Securities and Exchange Commission.
“ Secured
Creditors ”: the Agents, the Lenders, the Issuing
Lender and the holders of Obligations under Specified Hedging
Agreements.
“
Security Documents ”: the collective reference
to the Route Security Agreement, the Intercreditor Agreement and
all other security documents hereafter delivered to the
Administrative Agent granting a Lien on any property of any Person
to secure the obligations and liabilities of any Loan Party under
any Loan Document.
“
Significant Subsidiary ”: any Subsidiary that
would be a “significant subsidiary” of any of the Loan
Parties within the meaning of the SEC’s Regulation
S-X.
“
Slot ”: at any time, all of the rights and
operational authority of the Borrower now held or hereafter
acquired, to conduct one Instrument Flight Rule (as defined under
the FAA regulations) landing or takeoff operation during a specific
hour or half-hour period at JFK (or at any other slot-constrained
airport in the U.S.) pursuant to FAA regulations, including Title
14, to the extent that any such slot is used to operate direct
non-stop flights to Asia using a Pacific Route and all take-off and
landing rights and operational authority of the Borrower at a
Northwest Hub in the U.S. or other airport in the U.S. which is an
origination or destination point for flights utilizing the Pacific
Routes, in each case, at such time. To the extent that the
Borrower ceases to use any Slot in connection with the Pacific
Routes, such Slot shall automatically cease to be a Slot hereunder,
including, without limitation, for purposes of Section
7.5.
“
Specified Currency Exchange Rate Protection Agreement
”: any Currency Exchange Rate Protection Agreement
entered into by the Borrower and any Person that, at the time such
Person entered into such Currency Exchange Protection Agreement,
was a Lender or Lender Affiliate designated by the relevant Lender
and the Borrower, by written notice to the Administrative Agent, as
a Specified Currency Exchange Rate Protection Agreement, which
notice shall include a copy of an agreement
18
providing for a
methodology agreed to by the Borrower, such Lender or Lender
Affiliate and the Administrative Agent of valuing on a
mark-to-market basis the amount of Hedging Obligations under such
Specified Currency Exchange Rate Protection Agreement from time to
time .
“
Specified Hedging Agreement ”; any Specified
Currency Exchange Rate Protection Agreement or any Specified
Interest Rate Protection Agreement.
“
Specified Interest Rate Protection Agreement ”:
any Interest Rate Protection Agreement entered into by the Borrower
and any Person that, at the time such Person entered into such
Interest Rate Protection Agreement, was a Lender or Lender
Affiliate designated by the relevant Lender and the Borrower, by
written notice to the Administrative Agent, as a Specified Interest
Rate Protection Agreement, which notice shall include a copy of an
agreement providing for a methodology agreed to by the Borrower,
such Lender or Lender Affiliate and the Administrative Agent of
valuing on a mark-to-market basis the amount of Hedging Obligations
under such Specified Interest Rate Protection Agreement from time
to time .
“
Specified Primed Liens ”: as defined in Section
3.14(a).
“
Subsidiary ”: (i) any corporation more than 50%
of whose stock having by the terms thereof ordinary voting power to
elect a majority of the directors of such corporation (irrespective
of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such
Person and/or one or more Subsidiaries of such Person and (ii) any
partnership, limited liability company, association, joint venture
or other entity in which such Person and/or one or more
Subsidiaries of such Person has more than a 50% equity interest at
the time; provided , however , that (a) LAX Two and
its Subsidiaries shall be deemed not to be Subsidiaries of Holdings
or any of its Subsidiaries for all purposes of this Agreement
(including the calculation of the financial covenants and the
definitions relating thereto) and the other Loan
Documents.
“
Supporting Route Facilities ”: the
Borrower’s gates, ticket counters, office space and baggage
claim areas at each airport necessary to operate a Pacific
Route.
“
Syndication Agent ”: as defined in the preamble
to this Agreement.
“ Term
Commitment ”: as to any Lender, the obligation
of such Lender, if any, to make a Term Loan in an aggregate
principal amount not to exceed the amount set forth under the
heading “Term Commitment” opposite such Lender’s
name on Schedule 1.1(a) to this Agreement or in the Assignment and
Acceptance pursuant to which such Lender become a party hereto, as
the same may be changed from time to time pursuant to the terms
hereof. The original aggregate amount of the Term Commitments
is $1,050,000,000.
“ Term
Lender ”: each Lender that has a Term
Commitment or that holds a Term Loan.
“ Term
Loan ”: as defined in Section 2.1.
“ Term
Percentage ”: as to any Term Lender at any
time, the percentage which such Lender’s Term Commitment then
constitutes of the total Term Commitments (or, at any time after
the Closing Date, the percentage which the aggregate principal
amount of such Lender’s Term Loans then outstanding
constitutes of the aggregate principal amount of the Term Loans
then outstanding).
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“ Term
Facility ”: the Term Commitments and the Term
Loans made thereunder.
“
Termination Date ”: the earliest of
(a) the Maturity Date, (b) the date on which the Revolving
Commitments are terminated pursuant to any provision of this
Agreement and (c) the date on which Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement
or any other Loan Document become due and payable as a result of an
Event of Default in accordance with this Agreement.
“
Termination Event ”: means a “reportable
event” described in Section 4043 of ERISA or in the
regulations thereunder (excluding events for which the requirement
for notice of such reportable event has been waived by the
PBGC).
“ Title
14 ”: Title 14 of the U.S. Code of Federal
Regulations, Part 93, Subparts K and S, as amended from time to
time or any successor or recodified regulation.
“ Title
49 ”: Title 49 of the United States Code,
which, among other things, recodified and replaced the U.S. Federal
Aviation Act of 1958, and the regulations promulgated pursuant
thereto or any subsequent legislation that amends, supplements or
supercedes such provisions.
“ Total
Appraised Value ”: as of any date of determination,
the Appraised Value as of such date of all Pool Assets other than
the Removed Pool Assets.
“ Total
Appraised Value Ratio ”: at any time, the ratio of
(a) Total Appraised Value (determined as of the then most recent
Appraisal of the Pool Assets) to (b) the sum of (i) the
aggregate unpaid principal amount of all Term Loans then
outstanding, plus (ii) the aggregate Revolving Commitments of
all Revolving Lenders then in effect or, if the Revolving
Commitments have been terminated, the amount of aggregate Revolving
Extensions of Credit of all Revolving Lenders then outstanding,
plus (iii) the amount of all Hedging Obligations under all
Specified Hedging Agreements then outstanding not to exceed the
lesser of (A) $150,000,000 and (B) the amount, if any, by
which (x) the Maximum Amount exceeds (y) the sum
of (1) the aggregate unpaid principal amount of the Term Loans
then outstanding plus (2) the aggregate amount of Revolving
Extensions of Credit of all Revolving Lenders then outstanding, and
plus (iv) any Pari Passu Obligations (for purposes of this
definition, Pari Passu Obligations shall include any Pari Passu
Commitments).
“
Transferee ”: any Assignee or
Participant.
“
Treasury Rate ”: as of the date which is 10
Business Days prior to the date on which an Appraisal is to be
delivered in accordance with Section 6.2(f), the effective yield of
(x) direct obligations of the United States maturing on the tenth
anniversary of such date or (y) if there are no such obligations,
the effective yield determined by linear interpolation between the
effective yield borne by the two direct obligations of the United
States maturing closest to, but straddling, the tenth anniversary
of such date, in each case as appearing on the relevant Telerate
service screen on such date. In the event that such screen is
not available, the “Treasury Rate” shall be determined
by reference to such other comparable publicly available service
selected by the Administrative Agent for displaying such effective
yield.
“
Type ”: as to any Loan, its nature as an ABR
Loan or a Eurodollar Loan.
“
Unavailable Japanese Foreign Slots ”: at any
time, any Japanese Foreign Slot at Narita Airport with respect to
which the Borrower has lost its rights (including as a result of
any action of an
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