EXHIBIT 10.2 364-Day Revolving Credit AgreementRetailer Agreement |
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Exhibit 10.2
EXECUTION COPY
$3,150,000,000 364-Day Revolving Credit Agreement
dated as of
October 17, 2003
among
INTERNATIONAL LEASE FINANCE CORPORATION,
THE BANKS (as defined herein)
and
CITICORP USA, INC.,
as Administrative Agent
BANK OF AMERICA, N.A.,
BANK OF SCOTLAND
and
CREDIT SUISSE FIRST BOSTON,
as Co-Documentation Agents,
CITIGROUP GLOBAL MARKETS INC.,
as Sole Arranger and Book Manager
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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............................................................. 11
Section 2.3. Funding of Bid Loans................................................................ 13
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.............................................................................. 15
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 5.3. Term-Out Option..................................................................... 18
SECTION 6. MAKING AND PRORATION OF PAYMENTS; SET-OFF; TAXES............................................... 19
Section 6.1. Making of Payments.................................................................. 19
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............................ 25
Section 7.3. Changes in Law Rendering Certain Loans Unlawful..................................... 25
Section 7.4. Funding Losses...................................................................... 26
Section 7.5. Discretion of Banks as to Manner of Funding......................................... 26
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................................................ 27
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.............................................................. 28
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. ............................................. 29
Section 8.12. Insurance.......................................................................... 29
Section 8.13. Taxes.............................................................................. 29
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........................................................................... 31
Section 9.3. Nature of Business.................................................................. 31
Section 9.4. Books, Records and Access........................................................... 31
Section 9.5. Insurance........................................................................... 31
Section 9.6. Repair.............................................................................. 32
Section 9.7. Taxes............................................................................... 32
Section 9.8. Compliance.......................................................................... 32
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................................................................ 33
Section 9.14. Liens.............................................................................. 33
Section 9.15. Use of Proceeds.................................................................... 34
SECTION 10. CONDITIONS TO LENDING......................................................................... 35
Section 10.1. Conditions Precedent to All Loans.................................................. 35
Section 10.2. Conditions to the Availability of the Commitments.................................. 35
SECTION 11. EVENTS OF DEFAULT AND THEIR EFFECT............................................................ 37
Section 11.1. Events of Default.................................................................. 37
Section 11.2. Effect of Event of Default......................................................... 39
SECTION 12. THE AGENT..................................................................................... 39
Section 12.1. Authorization...................................................................... 39
Section 12.2. Indemnification.................................................................... 39
Section 12.3. Action on Instructions of the Required Banks....................................... 40
Section 12.4. Payments........................................................................... 40
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Section 12.5. Exculpation........................................................................ 41
Section 12.6. Credit Investigation............................................................... 41
Section 12.7. CUSA and Affiliates................................................................ 41
Section 12.8. Resignation........................................................................ 42
Section 12.9. The Register; the Notes............................................................ 42
SECTION 13. GENERAL....................................................................................... 43
Section 13.1. Waiver; Amendments................................................................. 43
Section 13.2. Notices............................................................................ 43
Section 13.3. Computations....................................................................... 44
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....................................................... 51
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. Tax Structure Disclosure.......................................................... 52
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SCHEDULES AND EXHIBITS
Schedule I Schedule of Banks (Sections 1.2 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 (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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364-DAY REVOLVING CREDIT AGREEMENT
364-DAY REVOLVING CREDIT AGREEMENT (this "Agreement"), dated
as of October 17, 2003, 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 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
$3,150,000,000 to the Company on a 364-day 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 $3,150,000,000, 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.
"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 confirmed in writing on the same day on a duly completed
and executed form substantially
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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 or, if the Term-Out Option is
in effect, Section 5.3.
"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.
"Company" - see Preamble.
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"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.
"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 (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
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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.
"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
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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, 2002 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.
"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
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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 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
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(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 (but not Term Loans), LIBOR plus the applicable rate margin
set forth in Schedule II, (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 and (iii) with respect to Term
Loans that are LIBOR Rate Loans, LIBOR plus the applicable rate margin set forth
in the row entitled "Drawn Pricing Under the Term-Out Option (if LIBOR Rate
Loans)" on Schedule II.
"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:
(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),
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(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 (or the date contemplated by Section 5.3
if the Term-Out Option is in effect).
"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 2 Penns Way, Suite 200, New Castle, DE 19720, Telecopy
Number 302-894-6005; Telephone 302-894-6120.
"Participant" - see Section 13.4.2.
"Payment Office" means the office of the Agent which, as of
the date hereof, is at 2 Penns Way, Suite 200, New Castle, DE 19720, Account
Number: 36852248.
"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
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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
(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
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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, 2004 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).
"Term Loans" - see Section 5.3.
"Term-Out Option" means the option of the Company to convert
the Committed Loans to Term Loans as defined in and contemplated by Section 5.3.
"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.
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
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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 or
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 m