<PAGE>
Exhibit 10.7
Execution Copy
$2,000,000,000 Five-Year Revolving Credit Agreement
dated as of
October 15, 2004
among
INTERNATIONAL LEASE FINANCE CORPORATION,
THE BANKS (as defined herein)
and
CITICORP USA, INC.,
as Administrative Agent
BANK OF AMERICA, N.A.,
CREDIT SUISSE FIRST BOSTON,
JPMORGAN CHASE BANK,
and
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND,
as Co-Syndication Agents
CITIGROUP GLOBAL MARKETS INC.,
as Sole Lead Arranger and Book Manager
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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.........................................................
12
Section 2.3. Funding
of Bid
Loans............................................................
14
SECTION 3. COMMITTED LOANS AND
NOTES..................................................................
14
Section 3.1. Agreement
to Make Committed
Loans............................................... 14
Section 3.2. Procedure
for Committed
Loans...................................................
14
Section 3.3. Maturity
of Committed
Loans.....................................................
15
SECTION 4. INTEREST AND
FEES..........................................................................
16
Section 4.1. Interest
Rates..................................................................
16
Section 4.2. Interest
Payment
Dates..........................................................
16
Section 4.3. Setting
and Notice of Committed Loan
Rates...................................... 16
Section 4.4. Facility
Fee....................................................................
17
Section 4.5.
Utilization
Fee.................................................................
17
Section 4.6. Agent's
Fees....................................................................
17
Section 4.7.
Computation of Interest and
Fees................................................ 17
SECTION 5. REDUCTION OR TERMINATION OF THE
COMMITMENTS; REPAYMENT; PREPAYMENTS........................
18
Section 5.1. Voluntary
Termination or Reduction of the
Commitments........................... 18
Section 5.2. Voluntary
Prepayments...........................................................
18
SECTION 6. MAKING AND PRORATION OF PAYMENTS;
SET-OFF; TAXES...........................................
18
Section 6.1. Making of
Payments..............................................................
18
Section 6.2. Pro Rata
Treatment;
Sharing.....................................................
19
Section 6.3.
Set-off.........................................................................
20
Section 6.4. Taxes,
etc......................................................................
20
SECTION 7. INCREASED COSTS AND SPECIAL
PROVISIONS FOR ABSOLUTE RATE LOANS AND LIBOR RATE LOANS........
23
Section 7.1. Increased
Costs.................................................................
23
Section 7.2. Basis for
Determining Interest Rate Inadequate or
Unfair........................ 24
Section 7.3. Changes
in Law Rendering Certain Loans
Unlawful................................. 25
Section 7.4. Funding
Losses..................................................................
25
Section 7.5.
Discretion of Banks as to Manner of
Funding..................................... 25
Section 7.6.
Conclusiveness of Statements; Survival of
Provisions............................ 26
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SECTION 8. REPRESENTATIONS AND
WARRANTIES.............................................................
26
Section 8.1.
Organization,
etc...............................................................
26
Section 8.2.
Authorization; Consents; No
Conflict............................................ 26
Section 8.3. Validity
and Binding
Nature.....................................................
27
Section 8.4. Financial
Statements............................................................
27
Section 8.5.
Litigation and Contingent
Liabilities........................................... 27
Section 8.6. Employee
Benefit
Plans..........................................................
27
Section 8.7.
Investment Company
Act..........................................................
27
Section 8.8. Public
Utility Holding Company
Act.............................................. 28
Section 8.9.
Regulation
U....................................................................
28
Section 8.10.
Information....................................................................
28
Section 8.11.
Compliance with Applicable Laws,
etc........................................... 28
Section 8.12.
Insurance......................................................................
28
Section 8.13.
Taxes..........................................................................
28
Section 8.14. Use of
Proceeds................................................................
29
Section 8.15. Pari
Passu.....................................................................
29
SECTION 9.
COVENANTS..................................................................................
29
Section 9.1. Reports,
Certificates and Other
Information..................................... 29
Section 9.2.
Existence.......................................................................
30
Section 9.3. Nature of
Business..............................................................
31
Section 9.4. Books,
Records and
Access.......................................................
31
Section 9.5.
Insurance.......................................................................
31
Section 9.6.
Repair..........................................................................
31
Section 9.7.
Taxes...........................................................................
31
Section 9.8.
Compliance......................................................................
31
Section 9.9. Sale of
Assets..................................................................
32
Section 9.10.
Consolidated Indebtedness to Consolidated
Tangible Net Worth
Ratio....................................................
32
Section 9.11. Fixed
Charge Coverage
Ratio....................................................
32
Section 9.12.
Consolidated Tangible Net
Worth................................................ 32
Section 9.13.
Restricted
Payments............................................................
32
Section 9.14.
Liens..........................................................................
32
Section 9.15. Use of
Proceeds................................................................
34
SECTION 10. CONDITIONS TO
LENDING.....................................................................
34
Section 10.1.
Conditions Precedent to All
Loans.............................................. 34
Section 10.2.
Conditions to the Availability of the
Commitments.............................. 35
SECTION 11. EVENTS OF DEFAULT AND THEIR
EFFECT........................................................
36
Section 11.1. Events
of
Default..............................................................
36
Section 11.2. Effect
of Event of
Default.....................................................
38
SECTION 12. THE
AGENT.................................................................................
38
Section 12.1.
Authorization..................................................................
38
Section 12.2.
Indemnification................................................................
39
Section 12.3. Action
on Instructions of the Required
Banks................................... 39
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Section 12.4.
Payments.......................................................................
39
Section 12.5.
Exculpation....................................................................
40
Section 12.6. Credit
Investigation...........................................................
41
Section
12.7. CUSA and
Affiliates............................................................
41
Section 12.8.
Resignation....................................................................
41
Section 12.9. The
Register; the
Notes........................................................
42
SECTION 13.
GENERAL...................................................................................
42
Section 13.1. Waiver;
Amendments.............................................................
42
Section 13.2.
Notices........................................................................
43
Section 13.3.
Computations...................................................................
45
Section 13.4.
Assignments;
Participations....................................................
45
Section 13.5. Costs,
Expenses and
Taxes......................................................
48
Section 13.6.
Indemnification................................................................
49
Section 13.7.
Regulation
U...................................................................
49
Section 13.8.
Extension of Termination Dates; Removal of Banks;
Substitution of
Banks.......................................................
49
Section 13.9.
Captions.......................................................................
51
Section 13.10.
Governing Law;
Severability...................................................
52
Section 13.11.
Counterparts;
Effectiveness...................................................
52
Section 13.12. Further
Assurances............................................................
52
Section 13.13.
Successors and
Assigns........................................................
52
Section 13.14. Waiver
of Jury
Trial..........................................................
52
Section 13.15. No
Fiduciary
Relationship.....................................................
52
Section 13.16. USA
PATRIOT
Act...............................................................
53
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SCHEDULES AND EXHIBITS
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Schedule I
Schedule of Banks (Sections 1.2, 3.1 and 13.8)
Schedule II Fees
and Margins (Sections 1.2, 4.4, 4.5 and 4.6)
Schedule III Address
for Notices (Section 13.2)
Exhibit A
Form of Notice of Competitive Bid Borrowing (Sections 1.2 and
2.2)
Exhibit B
Form of Bid (Sections 1.2 and 2.2)
Exhibit C
Form of Committed Loan Request (Sections 1.2 and 3.2)
Exhibit D
Form of Bid Note (Sections 1.2 and 2.4)
Exhibit E
Form of Committed Note (Sections 1.2 and 3.4)
Exhibit F
Fixed Charge Coverage Ratio 12/31/03 (Sections 1.2 and 9.11)
Exhibit G
Form of Opinion of Counsel for the Company (Section 10.2.5)
Exhibit H
Form of Opinion of the General Counsel of the Company (Section
10.2.5)
Exhibit I
Form of Assignment and Assumption Agreement (Section 13.4.1)
Exhibit J
Form of Request for Extension of Termination Date (Section 13.8
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iv
<PAGE>
FIVE-YEAR REVOLVING CREDIT AGREEMENT
FIVE-YEAR REVOLVING CREDIT AGREEMENT (this "Agreement"), dated as
of
October 15, 2004, among INTERNATIONAL LEASE
FINANCE CORPORATION, a California
corporation (herein called the "Company"),
the financial institutions listed on
the signature pages hereof (herein,
together with their respective successors
and assigns, collectively called the
"Banks" and individually each called a
"Bank") and CITICORP USA, INC. (herein, in
its individual corporate capacity,
together with its successors and assigns,
called "CUSA"), as administrative
agent for the Banks (herein, in such
capacity, together with its successors and
assigns in such capacity, called the
"Agent").
W I T N E S S E T H:
WHEREAS, the Company has requested the Banks to lend up to
$2,000,000,000 to the Company on a five
year revolving basis for general
corporate purposes;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties
hereto agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
Section 1.1. Terms Generally. The definitions ascribed to terms
in
this Section 1 and elsewhere in this Agreement shall apply
equally
to both the singular and plural forms of the terms defined.
Whenever
the context may require, any pronoun shall include the
corresponding
masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by
the
phrase "without limitation". The words "hereby", "herein",
"hereof",
"hereunder" and words of similar import refer to this Agreement as
a
whole (including any exhibits and schedules hereto) and not
merely
to the specific section, paragraph or clause in which such word
appears. All
references herein to Sections, Exhibits and Schedules
shall be deemed references to Sections of and Exhibits and
Schedules
to this Agreement unless the context shall otherwise require.
Section 1.2. Specific Terms. When used herein, the following
terms
shall have the following meanings:
"Absolute Rate" means a rate of interest per annum, expressed as
a
percentage to four decimal places and set
forth in a Bid for a particular Bid
Loan amount and a particular Loan
Period.
"Absolute Rate Loan" means any Loan which bears interest at an
Absolute Rate.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling,
controlled by, or under direct or indirect
common control with such Person. A Person
shall be deemed to control another
Person if such first Person possesses,
directly or indirectly, the power to
direct or cause the direction of the
management and policies of such other
Person, whether through ownership of stock,
by contract or otherwise.
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"Agent" - see Preamble.
"Aggregate Commitment" means $2,000,000,000, as reduced by any
reduction in the Commitments made from time
to time pursuant to Section 5.1 or
Section 13.8.
"Agreement" - see Preamble.
"AIG" means American International Group, Inc., a Delaware
corporation.
"Assignee" - see Section 13.4.1.
"Authorized Officer" of the Company means any of the Chairman of
the
Board, the President, the Vice Chair and
Chief Financial Officer, the Treasurer,
the Controller and the Assistant Controller
of the Company.
"Available Commitment" - see Section 2.2(a).
"Bank" - see Preamble.
"Bank Parties" - see Section 13.6.
"Base LIBOR" means, with respect to any Loan Period for a LIBOR
Rate
Loan, (a) the rate per annum for Dollar
deposits approximately equal to the
principal amount of the LIBOR Rate Loans
for which LIBOR is being determined and
with maturities comparable to the Loan
Period for which such rate would apply,
which appears on the Telerate Page 3750
(the "Telerate Page") at approximately
11:00 A.M., London time, on the day that is
two Business Days prior to the first
day of such Loan Period and (b) if no such
rate so appears on the Telerate Page
3750, the rate per annum determined by the
Agent to be the arithmetic mean
(rounded to the nearest 1/100 of 1% or, if
there is no nearest 1/100 of 1%, to
the next higher 1/100 of 1%) of the
respective rates of interest communicated by
the Reference Banks to the Agent as the
rate at which Dollar deposits are
offered to the Reference Banks by leading
banks in the London interbank deposit
market at approximately 11:00 a.m., London
time, on the second full Business Day
preceding the first day of such Loan Period
in an amount substantially equal to
the amount of such LIBOR Rate Loan for such
Reference Banks and for a period
equal to such Loan Period.
"Base Rate" means a fluctuating interest rate per annum, as shall
be
in effect from time to time, which rate per
annum shall on any day be equal to
the higher of, (a) the rate of interest
announced publicly by Citibank, N.A. in
New York, New York, from time to time, as
Citibank, N.A.'s base rate; and (b)
the Federal Funds Rate for such day plus
1/2 of 1% per annum.
"Base Rate Loan" means any Loan which bears interest at the
Base
Rate.
"Bid" means one or more offers by a Bank to make one or more
Bid
Loans, submitted to the Agent by telephone
no later than the Submission Deadline
and promptly
Credit Agreement
<PAGE>
-3-
confirmed in writing on the same day on a
duly completed and executed form
substantially similar to Exhibit B,
personally delivered or transmitted by
facsimile to the Agent.
"Bid Borrowing" - see Section 2.2(a).
"Bid Loan" means a Loan in Dollars that is an Absolute Rate Loan
or
a LIBOR Rate Loan made pursuant to Section
2.
"Bid Note" means a promissory note of the Company, substantially
in
the form of Exhibit D, duly completed,
evidencing Bid Loans made to the Company,
as such note may be amended, modified or
supplemented or supplanted pursuant to
Section 13.4.1 from time to time.
"Business Day" means any day of the year on which banks are open
for
commercial banking business in the City of
New York and Los Angeles and, if the
applicable Business Day relates to the
determination of LIBOR for any LIBOR Rate
Loan, any such Business Day on which
dealings in deposits in Dollars are
transacted in the London interbank
market.
"Capitalized Lease" means any lease under which any obligations
of
the lessee are, or are required to be,
capitalized on a balance sheet of the
lessee in accordance with generally
accepted accounting principles in the United
States of America.
"Capitalized Rentals" means, as of the date of any
determination,
the amount at which the obligations of the
lessee, due and to become due under
all Capitalized Leases under which the
Company or any Subsidiary is a lessee,
are reflected as a liability on a
consolidated balance sheet of the Company and
its Subsidiaries.
"Closing Date" - see Section 10.2.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitments" means the Banks' commitments to make Committed
Loans
hereunder; and "Commitment" as to any Bank
means the amount set forth opposite
such Bank's name on Schedule I (as reduced
in accordance with Section 5.1, or as
periodically revised in accordance with
Section 13.4 or Section 13.8).
"Committed Loan" means a Loan in Dollars that is a Base Rate Loan
or
LIBOR Rate Loan made pursuant to Section
3.
"Committed Loan Request" - see Section 3.2(a).
"Committed Note" means a promissory note of the Company,
substantially in the form of Exhibit E,
duly completed, evidencing Committed
Loans to the Company, as such note may be
amended, modified or supplemented or
supplanted pursuant to Section 13.4.1 from
time to time.
Credit Agreement
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"Company" - see Preamble.
"Consolidated Indebtedness" means, as of the date of any
determination, the total amount of
Indebtedness less the amount of current and
deferred income taxes and rentals received
in advance of the Company and its
Subsidiaries determined on a consolidated
basis in accordance with generally
accepted accounting principles in the
United States of America, and excluding
adjustments in relation to Indebtedness
denominated in any currency other than
Dollars and any related derivative
liability, in each case to the extent arising
from currency fluctuations (such exclusions
to apply only to the extent the
resulting liability is hedged by the
Company or such Subsidiary).
"Consolidated Tangible Net Assets" means, as of the date of any
determination, the total amount of assets
(less depreciation and valuation
reserves and other reserves and items
deductible from the gross book value of
specific asset amounts under generally
accepted accounting principles) which
under generally accepted accounting
principles would be included on a balance
sheet of the Company and its Subsidiaries,
after deducting therefrom (i) all
liability items except Indebtedness
(whether incurred, assumed or guaranteed)
for borrowed money maturing by its terms
more than one year from the date of
creation thereof or which is extendible or
renewable at the sole option of the
obligor in such manner that it may become
payable more than one year from the
date of creation thereof, shareholder's
equity and reserves for deferred income
taxes and (ii) all good will, trade names,
trademarks, patents, unamortized debt
discount and expense and other like
intangibles, which in each case would be so
included on such balance sheet.
"Consolidated Tangible Net Worth" means, as of the date of any
determination, the total of shareholders'
equity (including capital stock,
additional paid-in capital and retained
earnings after deducting treasury
stock), less the sum of the total amount of
goodwill, organization expenses,
unamortized debt issue costs (determined on
an after-tax basis), deferred assets
other than prepaid insurance and prepaid
taxes, the excess of cost of shares
acquired over book value of related assets,
surplus resulting from any
revaluation write-up of assets subsequent
to December 31, 2002 and such other
assets as are properly classified as
intangible assets, all determined in
accordance with generally accepted
accounting principles in the United States of
America consolidating the Company and its
Subsidiaries.
"Covered Taxes" means all Taxes, including all liabilities
(including, without limitation, any
penalties, interest and other additions to
tax) with respect thereto, other than the
following Taxes, including all
liabilities (including, without limitation,
any penalties, interest and other
additions to tax) with respect thereto: (i)
Taxes imposed on the net income or
capital of the Agent, a Bank, Assignee or
Participant under this Agreement and
franchise taxes imposed in lieu thereof
(including without limitation branch
profits taxes, minimum taxes and taxes
computed under alternative methods, at
least one of which is based on net income
(collectively referred to as "net
income taxes")) by (A) the jurisdiction
under the laws of which such Agent,
Bank, Assignee or Participant under this
Agreement is organized or resident for
tax purposes or any political subdivision
thereof or (B) the jurisdiction of
such Agent, Bank, Assignee or Participant's
applicable lending office or any
political subdivision thereof or (C) any
jurisdiction with which such Agent,
Bank, Assignee or Participant has any
present or former connection
Credit Agreement
<PAGE>
-5-
(other than solely by virtue of being a
Bank under this Agreement), (ii) any
Taxes to the extent that they are in effect
and would apply to a payment to such
Agent, Bank, Assignee or Participant as of
the date of a change in the
jurisdiction of such Agent, Bank, Assignee
or Participant's applicable lending
office or (iii) any Taxes that would not
have been imposed but for (A) the
failure or unreasonable delay by such
Agent, Bank, Assignee or Participant, as
applicable, to complete, provide, or file
and update or renew, any application
forms, certificates, documents or other
evidence required from time to time,
properly completed and duly executed, to
qualify for any applicable exemption
from or reduction of Taxes, including,
without limitation, the certificates,
documents or other evidence required under
Sections 6.4(b), 6.4(c) and 6.4(e)
(unless such failure or delay results from
a change in applicable law after the
Closing Date or the date of the applicable
agreement pursuant to which such
Assignee or Participant, as the case may
be, acquires an interest under this
Agreement, which precludes such Agent,
Bank, Assignee or Participant, as
applicable, from qualifying for such
exemption or reduction) or (B) the gross
negligence or willful misconduct of such
Agent, Bank, Assignee or Participant.
"CUSA" - see Preamble.
"Dollar", and $, refer to the lawful money of the United States
of
America.
"ECA Financing" means any subsidized financing of the acquisition
of
Airbus Industrie aircraft, the repayment
obligations of which will be supported
by guaranties issued by certain European
government export credit agencies (the
European Credit Agency Export Finance
Program) and a Company Guaranty and a
pledge of the assets of (including any
rights to or interests in any reserve or
security deposit held by) each such
Wholly-owned Subsidiary.
"Eligible Assignee" means (i) any Bank, and any Affiliate of
any
Bank and (ii)(a) a commercial bank
organized under the laws of the United States
or any state thereof, (b) a savings and
loan association or savings bank
organized under the laws of the United
States or any state thereof, (c) a
commercial bank organized under the laws of
any other country or a political
subdivision thereof; provided that (1) such
bank is acting through a branch or
agency located in the United States or (2)
such bank organized under the laws of
a country that is a member of the
Organization for Economic Cooperation and
Development or a political subdivision of
such country and (d) a finance
company, insurance company, mutual fund,
leasing company or other financial
institution or fund (whether a corporation,
partnership or other entity) which
is engaged in making, purchasing or
otherwise investing in commercial loans in
the ordinary course of its business, and
having total assets in excess of
$150,000,000.
"ERISA" means the Employee Retirement Income Security Act of
1974,
as amended.
"ERISA Affiliate" means any corporation, trade or business that
is,
along with the Company or any Subsidiary, a
member of a controlled group of
corporations or a controlled group of
trades or businesses, as described in
sections 414(b) and 414(c), respectively,
of the Code or Section 4001 of ERISA.
Credit Agreement
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-6-
"Eurodollar Reserve Percentage" means for any day in any Loan
Period
for any LIBOR Rate Loan that percentage in
effect on such day as prescribed by
the Board of Governors of the Federal
Reserve System (or any successor thereto)
or other U.S. government agency for
determining the reserve requirement
(including, without limitation, any
marginal, basic, supplemental or emergency
reserves) for a member bank of the Federal
Reserve System in New York City with
deposits exceeding one billion dollars in
respect of eurocurrency funding
liabilities. LIBOR shall be adjusted
automatically on and as of the effective
date of any change in the Eurodollar
Reserve Percentage.
"Event of Default" means any of the events described in Section
11.1.
"Eximbank" means the Export-Import Bank of the United States.
"Existing Litigation" - see Section 10.1.3.
"FASB 13" means the Statement of Financial Accounting Standards
No.
13 (Accounting for Leases) as in effect on
the date hereof.
"Federal Funds Rate" means, for any period, a fluctuating
interest
rate per annum equal for each day during
such period to the weighted average of
the rates on overnight Federal funds
transactions with members of the Federal
Reserve System arranged by Federal funds
brokers, as published for such day (or,
if such day is not a Business Day, for the
next preceding Business Day) by the
Federal Reserve Bank of New York, or, if
such rate is not so published for any
day which is a Business Day, the average of
the quotations for such day on such
transactions received by the Agent from
three Federal funds brokers of
recognized standing selected by it.
"Fixed Charge Coverage Ratio" on the last day of any quarter of
any
fiscal year of the Company means the ratio
for the period of four fiscal
quarters ending on such day of earnings to
combined fixed charges and preferred
stock dividends referred to in Paragraph
(d)(1) of Item 503 of Regulation S-K of
the Securities and Exchange Commission, as
amended from time to time, and
determined pursuant to Instructions to
paragraph 503(d) of such Item 503 with
the Company as "registrant" (such ratio for
the four fiscal quarters ended
December 31, 2003 is attached hereto as
Exhibit F); provided, however, that if
the Required Banks in their reasonable
discretion determine that amendments to
Regulation S-K subsequent to the date
hereof substantially modify the provisions
of such Item 503, "Fixed Charge Coverage
Ratio" shall have the meaning
determined by this definition without
regard to any such amendments.
"Funding Date" means the date on which any Loan is scheduled to
be
disbursed.
"Funding Office" means, with respect to any Bank, any office or
offices of such Bank or Affiliate or
Affiliates of such Bank through which such
Bank shall fund or shall have funded any
Loan. A Funding Office may be, at such
Bank's option, either a domestic or foreign
office of such Bank or a domestic or
foreign office of an Affiliate of such
Bank.
Credit Agreement
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-7-
"Governmental Authority" means any nation or government, any
state
or other political subdivision thereof and
any entity exercising executive,
legislative, judicial, regulatory or
administrative functions of or pertaining
to government.
"Guaranties" by any Person means, without duplication, all
obligations (other than endorsements in the
ordinary course of business of
negotiable instruments for deposit or
collection) of such Person guaranteeing or
in effect guaranteeing any Indebtedness,
dividend or other obligation of any
other Person (the "Primary Obligor") in any
manner, whether directly or
indirectly, including, without limitation,
all obligations incurred through an
agreement, contingent or otherwise, by such
Person: (a) to purchase such
Indebtedness or obligation or any property
or assets constituting security
therefor, (b) to advance or supply funds
(i) for the purchase or payment of such
Indebtedness or obligation or (ii) to
maintain working capital or other balance
sheet condition or otherwise to advance or
make available funds for the purchase
or payment of such Indebtedness or
obligation, (c) to lease property or to
purchase securities or other property or
services primarily for the purpose of
assuring the owner of such Indebtedness or
obligation of the ability of the
Primary Obligor to make payment of the
Indebtedness or obligation or (d)
otherwise to assure the owner of the
Indebtedness or obligation of the Primary
Obligor against loss in respect thereof;
provided, however, that the obligation
described in clause (c) shall not include
(i) obligations of a buyer under an
agreement with a seller to purchase goods
or services entered into in the
ordinary course of such buyer's and
seller's businesses unless such agreement
requires that such buyer make payment
whether or not delivery is ever made of
such goods or services and (ii) remarketing
agreements where the remaining debt
on an aircraft does not exceed the
aircraft's net book value, determined in
accordance with industry standards, except
that clause (c) shall apply to the
amount of remaining debt under a
remarketing agreement that exceeds the net book
value of the aircraft. For the purposes of
all computations made under this
Agreement, a Guaranty in respect of any
Indebtedness for borrowed money shall be
deemed to be Indebtedness equal to the
principal amount of such Indebtedness for
borrowed money which has been guaranteed,
and a Guaranty in respect of any other
obligation or liability or any dividend
shall be deemed to be Indebtedness equal
to the maximum aggregate amount of such
obligation, liability or dividend.
"Indebtedness" of any Person means and includes, without
duplication, all obligations of such Person
which in accordance with generally
accepted accounting principles in the
United States of America shall be
classified upon a balance sheet of such
Person as liabilities of such Person,
and in any event shall include all:
(a) obligations of such Person for borrowed money or which have
been
incurred
in connection with the acquisition of property or assets (other
than
security and other deposits on flight equipment),
(b) obligations secured by any Lien or other charge upon property
or
assets
owned by such Person, even though such Person has not assumed
or
become liable for the payment of
such obligations,
(c) obligations created or arising under any conditional sale,
or
other
title retention agreement with respect to property acquired by
such
Person,
notwithstanding
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the fact
that the rights and remedies of the seller, lender or lessor
under such
agreement in the event of default are limited to repossession
or sale of
property,
(d) Capitalized Rentals of such Person under any Capitalized
Lease,
(e) obligations evidenced by bonds, debentures, notes or other
similar
instruments, and
(f) Guaranties by such Person, to the extent required pursuant
to
the
definition thereof.
"Indemnified Liabilities" - see Section 13.6.
"LIBOR" means, with respect to any Loan Period the rate per
annum
(rounded to the nearest 1/100 of 1% or, if
there is no nearest 1/100 of 1%, to
the next higher 1/100 of 1%), determined
pursuant to the following formula:
LIBOR=
Base LIBOR
-----------------------------------
(1 - Eurodollar Reserve Percentage)
"LIBOR Rate" means (i) with respect to Committed Loans that are
LIBOR Rate Loans, LIBOR plus the applicable
rate margin set forth for LIBOR Rate
Loans in the row entitled "Margins" on
Schedule II and (ii) with respect to Bid
Loans that are LIBOR Rate Loans, LIBOR plus
or minus the rate margin set forth
in a Bid for a particular Bid Loan amount
and a particular Loan Period.
"LIBOR Rate Loan" means any Loan which bears interest at a
LIBOR
Rate.
"Lien" means any mortgage, pledge, lien, security interest or
other
charge, encumbrance or preferential
arrangement, including the retained security
title of a conditional vendor or lessor.
For avoidance of doubt, the parties
hereto acknowledge that the filing of a
financing statement under the Uniform
Commercial Code does not, in and of itself,
give rise to a Lien.
"Litigation Actions" means all litigation, claims and
arbitration
proceedings, proceedings before any
Governmental Authority or investigations
which are pending or, to the knowledge of
the Company, threatened against, or
affecting, the Company or any
Subsidiary.
"Loan Period" means (i) with respect to any Absolute Rate Loan,
the
period commencing on such Loan's Funding
Date and ending not less than 14 days
thereafter nor more than 6 months
thereafter as specified in the Bid Loan
Request related to such Bid Loan and (ii)
with respect to any LIBOR Rate Loan,
the period commencing on such Loan's
Funding Date and ending 1, 2, 3 or 6 months
thereafter as selected by the Company
pursuant to Section 3.2(a) or specified in
the Notice of Competitive Bid Borrowing, as
the case may be; provided, however,
that:
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(a) if a Loan Period would otherwise end on a day which is not
a
Business
Day, such Loan Period shall end on the next succeeding Business
Day
(unless, in the case of a LIBOR Rate Loan, such next succeeding
Business
Day would fall in the next succeeding calendar month, in which
case such
Loan Period shall end on the next preceding Business Day),
(b) in the case of a Loan Period for any LIBOR Rate Loan, if
there
exists no
day numerically corresponding to the day such Loan was made in
the month
in which the last day of such Loan Period would otherwise fall,
such Loan
Period shall end on the last Business Day of such month, and
(c) on the date of the making of any Loan by a Bank, the Loan
Period
for such
Loan shall not extend beyond the then-scheduled Termination
Date
for such
Bank.
"Loans" means, collectively, the Bid Loans and the Committed
Loans
and, individually, any Bid Loan or
Committed Loan.
"Material
Adverse Effect" means (i) any material adverse effect on
the business, properties, condition
(financial or otherwise) or operations of
the Company and its Subsidiaries, taken as
a whole since any stated reference
date or from and after the date of
determination, as the case may be, (ii) any
material adverse effect on the ability of
the Company to perform its material
obligations hereunder and under the Notes
or (iii) any material adverse effect
on the legality, validity, binding effect
or enforceability of any material
provision of this Agreement or any
Note.
"Multiemployer Plan" has the meaning assigned to such term in
Section 3(37) of ERISA.
"New Litigation" - see Section 10.1.3.
"Notes" means, collectively, the Bid Notes and the Committed
Notes;
and "Note" means any individual Bid Note or
Committed Note.
"Notice of Competitive Bid Borrowing" - see Section 2.2(a).
"Notice Office" means the office of CUSA which, as of the date
hereof, is located at 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.
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<PAGE>
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"PBGC" means the Pension Benefit Guaranty Corporation and any
entity
succeeding to any or all of its functions
under ERISA.
"Percentage" means as to any Bank the ratio, expressed as a
percentage, that such Bank's Commitment as
set forth opposite such Bank's name
on Schedule I, as periodically revised in
accordance with Section 13.4 or 13.8,
bears to the Aggregate Commitment or, if
the Commitments have been terminated,
the ratio, expressed as a percentage, that
the aggregate principal amount of
such Bank's outstanding Loans bears to the
aggregate principal amount of all
outstanding Loans.
"Person" means an individual or a corporation, partnership,
trust,
incorporated or unincorporated association,
joint venture, joint stock company,
government (or an agency or political
subdivision thereof) or other entity of
any kind.
"Plan" means, at any date, any employee pension benefit plan
(as
defined in section 3(2) of ERISA) which is
subject to Title IV of ERISA (other
than a Multiemployer Plan) and to which the
Company or any ERISA Affiliate may
have any liability, including any liability
by reason of having been a
substantial employer within the meaning of
section 4063 of ERISA at any time
during the preceding five years, or by
reason of being deemed to be a
contributing sponsor under section 4069 of
ERISA.
"Reference Banks" means Citibank, N.A., Bank of America, N.A.
and
The Governor and Company of the Bank of
Scotland.
"Reportable Event" means an event described in Section 4043(c)
of
ERISA with respect to a Plan other than
those events as to which the 30-day
notice period is waived under subsection
.22, .23, .25, .27 or .28 of PBGC
Regulation Section 4043.
"Required Banks" means Banks having an aggregate Percentage of
51%
or more.
"Significant Subsidiary" means any Subsidiary which is so
defined
pursuant to Rule 1-02 of Regulation S-X
promulgated by the Securities and
Exchange Commission.
"Submission Deadline" - see Section 2.2(b).
"Subsidiary" means any Person of which or in which the Company
and
its other Subsidiaries own directly or
indirectly 50% or more of:
(a) the combined voting power of all classes of stock having
general
voting
power under ordinary circumstances to elect a majority of the
board
of
directors of such Person, if it is a corporation,
(b) the capital interest or profits interest of such Person, if
it
is a
partnership, joint venture or similar entity, or
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<PAGE>
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(c) the beneficial interest of such Person, if it is a trust,
association or other unincorporated organization.
"Successor Bank" - see Section 13.8(c).
"Taxes" with respect to any Person means income, excise and
other
taxes, and all assessments, imposts, duties
and other governmental charges or
levies, imposed upon such Person, its
income or any of its properties,
franchises or assets by any Governmental
Authority.
"Telerate Page" -
see "Base LIBOR".
"Terminating Bank" - see Section 13.8(c).
"Termination Date" means, with respect to any Bank, the earliest
to
occur of (i) October 15, 2009 or such later
date as may be agreed to by such
Bank pursuant to Section 13.8(a), or if
such day is not a Business Day, the next
preceding Business Day, (ii) the date on
which the Commitments shall terminate
pursuant to Section 11.2 or the Commitments
shall be reduced to zero pursuant to
Section 5.1 and (iii) the date specified as
such Bank's Termination Date
pursuant to Section 13.8(b), or, if such
day is not a Business Day, the next
preceding Business Day; in all cases,
subject to the provisions of Section
13.8(d).
"Unmatured Event of Default" means any event which if it
continues
uncured will, with lapse of time or notice
or lapse of time and notice,
constitute an Event of Default.
"Wholly-owned Subsidiary" means any Person of which or in which
the
Company and its other Wholly-owned
Subsidiaries own directly or indirectly 100%
of:
(a) the issued and outstanding shares of stock (except shares
required
as directors, qualifying shares),
(b) the capital interest or profits interest of such Person, if
it
is a
partnership, joint venture or similar entity, or
(c) the beneficial interest of such Person, if it is a trust,
association or other unincorporated organization.
SECTION 2. BID LOANS AND BID NOTES.
Section 2.1. Making of Bid Loans. On the terms and subject to
the
conditions of this Agreement, each Bank, severally and for
itself
alone, may (but is not obligated to) make Bid Loans to the
Company
from time
to time on or after the date hereof and prior to the date
which is the fourteenth day preceding such Bank's Termination
Date
in amounts equal to such Bank's Bids that have been accepted as
provided in Section 2.2(c); provided, that the aggregate
principal
amount of all outstanding Loans shall not at any time exceed
the
then Aggregate Commitment.
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<PAGE>
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Section 2.2. Procedure for Bid Loans.
(a) Bid Loan Request. Whenever the Company desires to incur a
competitive bid borrowing (a "Bid
Borrowing"), it shall give the Agent written
notice (or telephonic notice promptly
confirmed in writing), such notice to be
delivered to the Agent at its Notice Office
no later than 12:00 Noon, New York
City time, at least three Business Days
prior to any proposed LIBOR Rate Loan
and at least one Business Day prior to any
proposed Absolute Rate Loan. Each
such notice shall be substantially in the
form of Exhibit A hereto (each a
"Notice of Competitive Bid Borrowing"), and
shall specify in each case (i) the
date of such proposed Bid Borrowing (which
shall be a Business Day), (ii) the
aggregate amount of the proposed Bid
Borrowing, (iii) whether the proposed Bid
Borrowing is to be an Absolute Rate Loan or
a LIBOR Rate Loan and the Loan
Period, (iv) the maturity date for
repayment of each Bid Loan to be made as part
of such borrowing (which maturity date
shall not be earlier than one month after
the date of any proposed LIBOR Rate Loan or
14 days after the date of any
proposed Absolute Rate Loan nor later than
the earliest to occur of (x) six
months after the date of such proposed Bid
Loan, (y) the Termination Date and
(z) if the proposed Bid Loan has an
interest rate that is the LIBOR Rate, the
last day of the proposed Loan Period), (v)
the interest payment date or dates
relating thereto, (vi) the account to which
the proceeds of such Bid Borrowing
are to be credited and (vii) any other
terms to be applicable to such Bid
Borrowing. The Agent shall promptly give
each Bank written notice (or telephonic
notice promptly confirmed in writing) of
each such request for a Bid Borrowing
received by it from the Company. Each
Notice of Competitive Bid Borrowing shall
contemplate Bid Loans in a minimum
aggregate principal amount of $10,000,000 or
a higher integral multiple of $1,000,000,
not to exceed, however, the excess of
the then Aggregate Commitment over the
aggregate principal amount of all
outstanding Loans, calculated as of the
relevant Funding Date, assuming that the
Company will pay, when due, all Loans
maturing on or prior to such Funding Date
(the "Available Commitment").
(b) Bidding Procedure. Each Bank shall, if in its sole discretion
it
elects to do so, irrevocably offer to make
one or more Bid Loans to the Company
as part of such proposed Bid Borrowing at a
rate or rates of interest specified
by such Bank in its sole discretion and
determined by such Bank independently of
each other Bank, by notifying by telephone
confirmed in writing to the Agent at
its Notice Office (which shall give prompt
notice thereof to the Company),
before 10:00 a.m., New York City time, on
the date (the "Submission Deadline")
that is (x) in the case of a proposed
Absolute Rate Loan, the same day as the
date of such proposed Bid Loan and (y) in
the case of a proposed LIBOR Rate
Loan, two Business Days before the date of
such proposed Bid Loan. Each Bid
shall be substantially in the form of
Exhibit B (each a "Bid"), and shall
specify in each case (i) the Loan Period,
(ii) the minimum amount and maximum
amount of each Bid Loan that such Bank
would be willing to make as part of such
proposed Bid Borrowing (which amounts may,
subject to the proviso in Section
2.1, exceed such Bank's Commitment), (iii)
the rate or rates of interest
therefor and (iv) such Bank's lending
office with respect to such Bid Loan;
provided, that if the Agent in its capacity
as a Bank shall, in its sole
discretion, elect to make any such offer,
it shall notify the Company of such
offer before 8:30 a.m., New York City time,
on the Submission Deadline.
(c) Acceptance of Bids. The Company shall, in turn, before
10:30
a.m., New York City time, on the Submission
Deadline, either:
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<PAGE>
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(i) cancel such proposed Bid Borrowing by giving the Agent notice
to
that
effect, or
(ii) accept (such acceptance to be irrevocable) one or more of
the
offers
made by any Bank or Banks pursuant to clause (b) above by
giving
notice (in
writing or by telephone confirmed in writing) to the Agent of
the amount
of each Bid Loan (which amount shall be equal to or greater
than the
minimum amount, and equal to or less than the maximum amount,
notified
to the Company by the Agent on behalf of such Bank for such Bid
Borrowing
pursuant to clause (b) above) to be made by such Bank as part
of
such Bid
Borrowing, and reject any remaining offers made by any Bank
pursuant
to clause (b) above by giving the Agent notice to that effect;
provided,
that for any maturity date acceptance of offers may only be
made
on the
basis of ascending Absolute Rates (in the case of an Absolute
Rate
Loan) or
floating rates (in the case of a LIBOR Rate Loan), in each case
commencing
with the lowest rate so offered and only as to offers made in
conformity
with the terms hereof; provided, further, however, if offers
are made
by two or more Banks at the same rate or rates and acceptance
of
all such
equal offers would result in a greater principal amount of Bid
Loans
being accepted than the aggregate principal amount requested by
the
Company,
the Company shall have the right to accept one or more of such
equal
offers in their entirety and reject the other equal offer or
offers
or to
allocate acceptance among all such equal offers (but giving
effect
to the
minimum and maximum amounts specified for each such offer
pursuant
to clause
(b) above), as the Company may elect in its sole discretion.
The
Company
may not accept offers whose aggregate principal amount is
greater
than the
requested aggregate amount as specified in the related Notice
of
Competitive Bid Borrowing subject to the proviso in Section
2.1.
(d) Cancellation of Bid Borrowing. If the Company notifies the
Agent
that such proposed Bid Borrowing is
cancelled pursuant to clause (c)(i) above,
the Agent shall give prompt notice thereof
to the Banks and such Bid Borrowing
shall not be made.
(e) Notification of Acceptance and Repayment. If the Company
accepts
one or more of the offers made by any Bank
or Banks pursuant to clause (c)(ii)
above, the Agent shall in turn promptly
notify (x) each Bank that has made an
offer as described in clause (b) above, of
the date and aggregate amount of such
Bid Borrowing and whether or not any offer
or offers made by such Bank pursuant
to clause (b) above have been accepted by
the Company and (y) each Bank that is
to make a Bid Loan as part of such Bid
Borrowing, of the amount of each Bid Loan
to be made by such Bank as part of such Bid
Borrowing. The Company agrees to
repay the principal amount of each Bid
Loan, and pay the interest accrued
thereon, in each case in accordance with
the terms bid and accepted as provided
herein and, additionally in the case of the
payment of interest, in accordance
with Sections 4.1 and 4.2 hereof.
(f) Reliance. The Agent may rely and act upon notice given by
telephone by individuals reasonably
believed by the Agent to be those designated
to the Agent by the Company or by any Bank
in writing from time to time, without
waiting for receipt of written confirmation
thereof, and the Company hereby
agrees to indemnify and hold harmless the
Agent from and against any and all
losses, costs, expenses, damages, claims,
actions or other proceedings relating
to such reliance.
Credit Agreement
<PAGE>
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Section 2.3. Funding of Bid Loans. No later than 1:00 p.m., New
York
City time, on the date specified in each Notice of Competitive
Bid
Borrowing, each Bank will make available the Bid Loan, if any, to
be
made by such Bank as part of the Bid Borrowing requested to be
made
on such date in the manner provided below. All amounts shall be
made
available to the Agent in Dollars and immediately available funds
at
the Payment Office of the Agent and the Agent promptly will
make
available to the Company at its account specified in the
relevant
Notice of Competitive Bid Borrowing the aggregate of the amounts
so
made available in the type of funds received. Unless the Agent
shall
have been notified by any Bank which has submitted a bid pursuant
to
Section 2.2(b) prior to the date of the proposed Bid Borrowing
that
such Bank does not intend to make available to the Agent its
portion, if any, of the Bid Borrowing to be made on such date,
the
Agent may assume that such Bank has made such amount available
to
the Agent on such date of the Bid Borrowing, and the Agent, in
reliance upon such assumption, may (in its sole discretion and
without any obligation to do so) make available to the Company
a
corresponding amount.
SECTION 3. COMMITTED LOANS AND NOTES.
Section 3.1. Agreement to Make Committed Loans. On the terms
and
subject to the conditions of this Agreement, each Bank,
severally
and for itself alone, agrees to make Loans (herein collectively
called "Committed Loans" and individually each called a
"Committed
Loan") on a revolving basis from time to time from the date
hereof
until such Bank's Termination Date in such Bank's Percentage of
such
aggregate amounts as the Company may from time to time request
as
provided in Section 3.2; provided, that (a) the aggregate
principal
amount of all outstanding Committed Loans of any Bank shall not
at
any time exceed the amount set forth opposite such Bank's name
on
Schedule I (as reduced in accordance with Section 5.1, Section
13.4
or Section 13.8) and (b) the aggregate principal amount of all
outstanding Committed Loans of all Banks plus the aggregate
principal amount of all outstanding Bid Loans of all Banks shall
not
at any time exceed the then Aggregate Commitment. Within the
limits
of
this Section 3.1, the Company may from time to time borrow,
prepay and reborrow Committed Loans on the terms and conditions
set
forth in this Agreement.
Section 3.2. Procedure for Committed Loans.
(a) Committed Loan Requests. The Company shall give the Agent
irrevocable telephonic notice at the Notice
Office (promptly confirmed in
writing on the same day), not later than
10:30 a.m., New York City time, (i) at
least three Business Days prior to the
Funding Date in the case of LIBOR Rate
Loans or (ii) on the Funding Date in the
case of Base Rate Loans, of each
requested Committed Loan, and the Agent
shall promptly advise each Bank thereof
and, in the case of a LIBOR Rate Loan, if
the Telerate Page is not available,
request each Reference Bank to notify the
Agent of its applicable rate (as
contemplated in the definition of LIBOR).
Each such notice to the Agent (a
"Committed Loan Request") shall be
substantially in the form of Exhibit C and
shall specify (i) the Funding Date (which
shall be a Business Day), (ii) the
aggregate amount of the Loans requested (in
an amount permitted under clause (b)
below), (iii) whether each Loan shall be a
LIBOR Rate Loan or a Base Rate Loan
and (iv) if a LIBOR Rate Loan, the Loan
Period therefor (subject to the
limitations set forth in the definition of
Loan Period).
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(b) Amount and Increments of Committed Loans. Each Committed
Loan
Request shall contemplate Committed Loans
in a minimum aggregate amount of
$10,000,000 or a higher integral multiple
of $1,000,000, not to exceed in the
aggregate (for all requested Committed
Loans) the Available Commitment.
(c) Funding of Committed Loans.
(i) Not later than 1:30 p.m., New York City time, on the
Funding
Date of a Committed Loan, each Bank shall,
subject to this Section 3.2(c),
provide the Agent at its Notice Office with
immediately available funds covering
such Bank's Committed Loan (provided, that
a Bank's obligation to provide funds
to the Agent shall be deemed satisfied by
such Bank's delivery to the Agent at
its Notice Office not later than 1:30 p.m.,
New York City time, of a Federal
reserve wire confirmation number covering
the proceeds of such Bank's Committed
Loan) and the Agent shall pay over such
funds to the Company not later than 2:00
p.m., New York City time, on such day if
the Agent shall have received the
documents required under Section 10 with
respect to such Loan and the other
conditions precedent to the making of such
Loan shall have been satisfied not
later than 10:00 a.m., New York City time,
on such day. If the Agent does not
receive such documents or such other
conditions precedent have not been
satisfied prior to such time, then (A) the
Agent shall not pay over such funds
to the Company, (B) the Company's Committed
Loan Request related to such Loan
shall be deemed cancelled in its entirety,
(C) in the case of Committed Loan
Requests relative to LIBOR Rate Loans, the
Company shall be liable to each Bank
in accordance with Section 7.4 and (D) the
Agent shall return the amount
previously provided to the Agent by each
Bank on the next following Business
Day.
(ii) The Company agrees, notwithstanding its previous delivery
of
any documents required under Section 10
with respect to a particular Loan,
immediately to notify the Agent of any
failure by it to satisfy the conditions
precedent to the making of such Loan. The
Agent shall be entitled to assume,
after it has received each of the documents
required under Section 10 with
respect to a particular Loan, that each of
the conditions precedent to the
making of such Loan has been satisfied
absent actual knowledge to the contrary
received by the Agent prior to the time of
the receipt of such documents. Unless
the Agent shall have notified the Banks
prior to 10:30 a.m., New York City time,
on the Funding Date of any Loan that the
Agent has actual knowledge that the
conditions precedent to the making of such
Loan have not been satisfied, the
Banks shall be entitled to assume that such
conditions precedent have been
satisfied.
(d) Repayment of Loans. If any Bank is to make a Committed Loan
hereunder on a day on which the Company is
to repay (or has elected to prepay,
pursuant to Section 5.2) all or any part of
any outstanding Loan held by such
Bank, the proceeds of such new Committed
Loan shall be applied to make such
repayment and only an amount equal to the
positive difference, if any, between
the amount being borrowed and the amount
being repaid shall be requested by the
Agent to be made available by such Bank to
the Agent as provided in Section
3.2(c).
Section 3.3. Maturity of Committed Loans. Except for a Base
Rate
Loan, which shall mature on the Termination Date, a Committed
Loan
made by a Bank shall
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<PAGE>
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mature on the last day of the Loan Period applicable to such
Committed Loan, but in no event later than the Termination Date
for
such Bank.
SECTION 4. INTEREST AND FEES.
Section 4.1. Interest Rates. The Company hereby promises to pay
interest on the unpaid principal amount of each Loan for the
period
commencing on the Funding Date for such Loan until such Loan is
paid
in full, as follows:
(a) if such Loan is a Bid Loan, at a rate per annum equal to
the
Absolute Rate or the LIBOR Rate, as
applicable, offered by the applicable Bank
and accepted by the Company for such Bid
Loan;
(b) if such Loan is a Base Rate Loan, at a rate per annum equal
to
the Base Rate from time to time in effect;
and
(c) if such Loan is a Committed Loan that is a LIBOR Rate Loan, at
a
rate per annum equal to the LIBOR Rate
applicable to the Loan Period for such
Loan; provided, however, that after the
maturity of any Loan (whether by
acceleration or otherwise), such Loan shall
bear interest on the unpaid
principal amount thereof at a rate per
annum (calculated on the basis of a
360-day year for the actual number of days
involved) equal to the Base Rate from
time to time in effect (but not less than
the interest rate in effect for such
Loan immediately prior to maturity) plus 1%
per annum.
Section 4.2. Interest Payment Dates. Except for Base Rate Loans,
as
to which accrued interest shall be payable on the last day of
each
calendar quarter and on the Termination Date, accrued interest
on
each Loan shall be payable in arrears on the last day of the
Loan
Period therefor and (i) with respect to each LIBOR Rate Loan with
a
Loan Period of six
months, on the day that is three months after the
first day of such Loan Period (or, if there is no day in such
third
month numerically corresponding to such first day of the Loan
Period, on the last Business Day of such month) and (ii) with
respect to each Absolute Rate Loan with a Loan Period exceeding
90
days, on the day that is 90 days after the first day of such
Loan
Period. After the maturity of any Loan, accrued interest on
such
Loan shall be payable on demand. If any interest payment date
falls
on a day that is not a Business Day, such interest payment date
shall be postponed to the next succeeding Business Day and the
interest paid shall cover the period of postponement (except that
if
the Loan is a LIBOR Rate Loan and the next succeeding Business
Day
falls in the next succeeding calendar month, such interest
payment
date shall be the immediately preceding Business Day).
Section 4.3. Setting and Notice of Committed Loan Rates.
(a) The applicable interest rate for each Committed Loan
hereunder
shall be determined by the Agent and notice
thereof shall be given by the Agent
promptly to the Company and to each Bank.
Each determination of the applicable
interest rate by the Agent shall be
conclusive and binding upon the parties
hereto in the absence of demonstrable
error.
Credit Agreement
<PAGE>
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(b) In the case of LIBOR Rate Loans, each Reference Bank agrees
to
use its best efforts to notify the Agent in
a timely fashion of its applicable
rate after the Agent's request (if any)
therefor under Section 2.2(a) and
Section 3.2(a) (as contemplated in the
definition of LIBOR). If as to any Loan
Period the Telerate Page is not available
and any one or more of the Reference
Banks is unable or for any reason fails to
notify the Agent of its applicable
rate by 11:30 a.m., New York City time, two
Business Days before the Funding
Date, then the applicable LIBOR Rate shall
be determined on the basis of the
rate or rates of which the Agent is given
notice by the remaining Reference Bank
or Banks by such time. If the Telerate Page
is not available and none of the
Reference Banks notifies the Agent of the
applicable rate prior to 11:30 a.m.,
New York City time, two Business Days
before the Funding Date, then (i) the
Agent shall promptly notify the other
parties thereof and (ii) at the option of
the Company the Committed Loan Request
delivered by the Company pursuant to
Section 3.2(a) with respect to such Funding
Date shall be cancelled or shall be
deemed to have specified a Base Rate
Loan.
(c) The Agent shall, upon written request of the Company or any
Bank, deliver to the Company or such Bank a
statement showing the computations
used by the Agent in determining the
interest rate applicable to any LIBOR Rate
Loan.
Section 4.4. Facility Fee. The Company agrees to pay to the
Agent
for the accounts of the Banks pro rata in accordance with their
respective Percentages an annual facility fee computed by
multiplying the average daily amount of the Aggregate
Commitment
(whether used or unused) by the applicable percentage
determined
with respect to such facility fee in accordance with Schedule
II
hereto. Such fee shall be payable quarterly in arrears on the
last
Business Day of March, June, September and December of each
year
(beginning with the last Business Day of December, 2004) until
the
Commitments have expired or have been terminated and on the date
of
such expiration or termination (and, in the case of any
Terminating
Bank, such Bank's Termination Date), in each case for the
period
then ending for which such facility fee has not previously been
paid.
Section 4.5. Utilization Fee. The Company agrees to pay to the
Agent
for the accounts of the Banks pro rata in accordance with their
respective Percentages, during any period that the aggregate
outstanding principal amount of the Loans exceeds 33.33% of the
Aggregate Commitment, a utilization fee computed by multiplying
the
average daily amount of the Aggregate Commitment by the
applicable
percentage determined with respect to such utilization fee in
accordance with Schedule II hereto; provided, that if the then
outstanding aggregate principal amount of Bid Loans exceeds an
amount equal to 33.33% of the Aggregate Commitments as then in
effect, then in calculating the aggregate outstanding principal
amount of the Loans for purposes of this Section 4.5 only, the
aggregate outstanding principal amount of Loans shall not include
an
amount equal to 33.33% of the Aggregate Commitments as then in
effect. Accrued utilization fees shall be due and payable on
each
date that interest is payable on each such Loan.
Section 4.6. Agent's Fees. The Company agrees promptly to pay to
the
Agent such fees as may be agreed from time to time by the
Company
and the Agent.
Section 4.7. Computation of Interest and Fees. Interest on
LIBOR
Rate Loans, and facility and utilization fees shall be computed
for
the actual number of days
Credit Agreement
<PAGE>
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elapsed on the basis of a 360-day year; and interest on Base
Rate
Loans shall be computed for the actual number of days elapsed on
the
basis of a 365/366 day year, as the case may be. The interest
rate
applicable to each LIBOR Rate Loan and Base Rate Loan, and (to
the
extent applicable) after the maturity of any other type of Loan,
the
interest rate applicable to such Loan, shall change
simultaneously
with each change in the LIBOR Rate or the Base Rate, as
applicable.
SECTION 5. REDUCTION OR TERMINATION OF THE COMMITMENTS;
REPAYMENT;
PREPAYMENTS.
Section 5.1. Voluntary Termination or Reduction of the
Commitments.
The Company may at any time on at least 5 days' prior
irrevocable
notice received by the Agent (which shall promptly on the same
day
or on the next Business Day advise each Bank thereof)
permanently
reduce the amount of the Commitments (such reduction to be pro
rata
among the Banks according to their respective Percentages) to
an
amount not less than the aggregate principal amount of all
outstanding Loans. Any such reduction shall be in the amount of
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof.
Concurrently with any such reduction, the Company shall prepay
the
principal of any Committed Loans outstanding to the extent that
the
aggregate amount of such Loans outstanding shall then exceed
the
Aggregate Commitment, as so reduced. The Company may from time
to
time on like irrevocable notice terminate the Commitments upon
payment in full of all Loans, all interest accrued thereon, all
fees
and all other obligations of the Company hereunder; provided,
however, that the Company may not at any time terminate the
Commitments if any Bid Loan is outstanding (unless the holder
of
each such outstanding Bid Loan has given its prior written
consent
to the concurrent repayment of such Bid Loan).
Section 5.2. Voluntary Prepayments. The Company may voluntarily
prepay Loans (other than Bid Loans, which may only be prepaid
with
the prior written consent of the holder thereof) without premium
or
penalty, except as may be required pursuant to subsection (e)
below,
in whole or in part; provided, that (a) each prepayment shall be
in
an aggregate principal amount of $10,000,000 or an integral
multiple
of $1,000,000 in excess thereof, (b) except for the prepayment
of
the aggregate amount of all Loans outstanding, no such
prepayment
shall result in there being less than $10,000,000 in Loans
outstanding in the aggregate, (c) the Company shall give the
Agent
at its Notice Office (which shall promptly advise each Bank)
not
less than three Business Days' prior notice thereof specifying
the
Loans to be prepaid and the date and amount of prepayment, (d)
any
prepayment of principal of any Loan shall include accrued
interest
to the date of prepayment on the principal amount being prepaid
and
(e) any prepayment of a LIBOR Rate Loan shall be subject to the
provisions of Section 7.4.
SECTION 6. MAKING AND PRORATION OF PAYMENTS; SET-OFF; TAXES.
Section 6.1. Making of Payments. Except as provided in Section
3.2(d), payments (including those made pursuant to Section 5.1)
of
principal of, or interest on, the Loans and all payments of fees
and
any other payments required to be made by the Company to the
Agent
hereunder shall be made by the Company to the Agent in
immediately
available funds at its Payment Office not later than 12:00 Noon,
New
York City time, on the date due; and funds received after that
Credit Agreement
<PAGE>
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hour shall be deemed to have been received by the Agent on the
next
following Business Day. The Agent shall promptly remit to each
Bank
its share (if any) of each such payment. All payments under
Section
7 and all payments required to be made hereunder to any Person
other
than the Agent shall be made by the Company when due directly to
the
Persons entitled thereto in immediately available funds.
Section 6.2. Pro Rata Treatment; Sharing.
(a) Except as required pursuant to Section 7 or Section 13.8,
each
payment or prepayment of principal of any
Committed Loans, each payment of
interest on the Committed Loans, each
payment of the utilization fee and each
payment of the facility fee shall be
allocated pro rata among the Banks in
accordance with their respective
Percentages. Each payment of principal of any
Bid Borrowing shall be allocated pro rata
among the Banks participating in such
Bid Borrowing in accordance with the
respective principal amounts of their
outstanding Bid Loans comprising such Bid
Borrowing. Each payment of interest on
any Bid Borrowing shall be allocated pro
rata among the Banks participating in
such Bid Borrowing in accordance with the
respective amounts of accrued and
unpaid interest on their outstanding Bid
Loans comprising such Bid Borrowing.
(b) If any Bank or other holder of a Committed Loan shall obtain
any
payment or other recovery (whether
voluntary, involuntary, by application of
offset or otherwise) on account of
principal of, interest on or fees or other
amounts with respect to any Committed Loan
in excess of the share of payments
and other recoveries (exclusive of payments
or recoveries under Section 7 or
pursuant to Section 13.8) such Bank or
other holder would have received if such
payment had been distributed pursuant to
the provisions of Section 6.2(a), such
Bank or other holder shall purchase from
the other Banks or holders, in a manner
to be specified by the Agent, such
participations in the Committed Loans held by
them as shall be necessary so that all such
payments of principal and interest
with respect to the Committed Loans shall
be shared by the Banks and other
holders pro rata in accordance with their
respective Percentages; provided,
however, that if all or any portion of the
excess payment or other recovery is
thereafter recovered from such purchasing
Bank or holder, the purchase shall be
rescinded and the purchase price restored
to the extent of such recovery, but
without interest.
(c) If any Bank or other holder of a Bid Loan shall obtain any
payment or other recovery (whether
voluntary, involuntary, by application of
offset or otherwise) on account of
principal of, interest on or fees or other
amounts with respect to any Bid Loan in
excess of the share of payments and
other recoveries (exclusive of payments or
recoveries pursuant to Section 7 or
Section 13.8) such Bank or other holder
would have received if such payment had
been distributed pursuant to the provisions
of Section 6.2(a), such Bank or
other holder shall purchase from the other
Banks or holders participating in
such Bid Borrowing, in a manner to be
specified by the Agent, such
participations in the Bid Loans held by
them as shall be necessary so that all
such payments of principal and interest
with respect to the Bid Loans shall be
shared by the Banks and other holders
participating in such Bid Borrowing in a
manner consistent with Section 6.2(a);
provided, however, that if all or any
portion of the excess payment or other
recovery is thereafter recovered from
such purchasing Bank or holder, the
purchase shall be rescinded and the purchase
price restored to the extent of such
recovery, but without interest.
Credit Agreement
<PAGE>
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Section 6.3. Set-off. The Company agrees that the Agent, each
Bank,
each Assignee and each Participant has all rights of set-off
and
banker's lien provided by applicable law, and the Company
further
agrees that at any time (i) any amount owing by the Company
under
this Agreement is due to any such Person or (ii) any Event of
Default exists, each such Person may apply to the payment of
any
amount payable hereunder any and all balances, credits,
deposits,
accounts or moneys of the Company then or thereafter with such
Person.
Section 6.4. Taxes, etc. (a) All payments made by the Company to
the
Agent, any Bank, any Assignee or any Participant under this
Agreement and the Notes shall be made without any set-off or
counterclaim, and free and clear of and without deduction for or
on
account of any present or future Covered Taxes now or hereafter
imposed (except to the extent that such withholding or deduction
(x)
is compelled by law, (y) results from the breach, by the
recipient
of a payment, of its agreement contained in Section 6.4(b),
Section
6.4(c) or Section 6.4(e) or (z) would not be required if the
representation or warranty contained in the second sentence of
Section 6.4(b) were true as of the date of this Agreement, or
with
respect to a Bank that becomes a Bank pursuant to Section
13.4.1,
Section 13.4.2 or Section 13.8, true at the time such Bank becomes
a
Bank hereunder). If the Company is compelled by law to make any
such
deductions or withholdings of any Covered Taxes it will:
(i) pay to the relevant authorities the full amount required to
be
so
withheld or deducted,
(ii) except to the extent that such withholding or deduction
results
from the
breach by the recipient of its agreement contained in Section
6.4(b),
Section 6.4(c) or Section 6.4(e) or, if applicable, would not
be
required
if the representation or warranty contained in the second
sentence of
Section 6.4(b) were true as of the date of this Agreement, or
with
respect to a Bank that becomes a Bank pursuant to Section
13.4.1,
Section
13.4.2 or Section 13.8, true at the time such Bank becomes a
Bank
hereunder,
pay such additional amounts as may be necessary in order that
the net
amount received by the Agent, each Bank, each Assignee and each
Participant after such deductions or withholdings (including any
required
deduction
or withholding on such additional amounts) shall equal the
amount
such payee would have received had no such deductions or
withholdings been made, and
(iii) promptly forward to the Agent (for delivery to such payee)
an
official
receipt or other documentation satisfactory to the Agent
evidencing
such payment to such authorities.
Moreover, if any Covered Taxes are directly asserted against
the
Agent, any Bank, any Assignee or any
Participant, such payee may pay such
Covered Taxes, and, upon receipt of an
official receipt or other satisfactory
documentation evidencing such payment, the
Company shall promptly pay such
additional amount (including, without
limitation, any penalties, interest or
reasonable expenses) as may be necessary in
order that the net amount received
by such payee after the payment of such
Covered Taxes (including any Covered
Taxes on such additional amount) shall
equal the amount such payee would have
received had no such
Credit Agreement
<PAGE>
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Covered Taxes been asserted (provided, that
the Agent, the Banks, and any
Assignee or Participant shall use
reasonable efforts, to the extent consistent
with applicable laws and regulations, to
minimize to the extent possible any
such Covered Taxes if they can do so
without material cost or legal or
regulatory disadvantage). For purposes of
this Section 6.4, a distribution
hereunder by the Agent or any Bank to or
for the account of any Bank, Assignee
or Participant shall be deemed to be a
payment by the Company. The Company's
agreement under this Section 6.4 shall
survive repayment of the Loans,
cancellation of the Notes or any
termination of this Agreement.
(b) In consideration of, and as a condition to, the Company's
undertakings in Section 6.4(a), each Bank
other than a Bank that is organized
and existing under the laws of the United
States of America or any State thereof
(a "Non-U.S. Bank") agrees to execute and
deliver to the Agent at its Payment
Office for delivery to the Company, before
the first scheduled payment date in
each year, (i) to the extent it acts for
its own account with respect to any
portion of any sums paid or payable to such
Non-U.S. Bank under this Agreement,
two original copies of United States
Internal Revenue Service Forms W-8BEN,
W-8ECI or W-8EXP (or any successor forms),
as appropriate, properly completed
and duly executed by such Non-U.S. Bank,
and claiming complete exemption from
withholding and deduction of United States
Federal Taxes, and (ii) to the extent
it does not act or has ceased to act for
its own account with respect to any
portion of any sums paid or payable to such
Bank under this Agreement (for
example, in the case of a typical
Participation by such Non-U.S. Bank), (1) for
the portion of any such sums paid or
payable with respect to which such Non-U.S.
Bank acts for its own account, two original
copies of the forms or statements
required to be provided by such Non-U.S.
Bank under subsection (i) of this
Section 6.4(b), properly completed and duly
executed by such Non-U.S. Bank and
claiming complete exemption from
withholding and deduction of United States
Federal Taxes, and (2) for the portion of
any such sums paid or payable with
respect to which such Non-U.S. Bank does
not act or has ceased to act for its
own account, two original copies of United
States Internal Revenue Service Form
W-8IMY (or any successor forms), properly
completed and duly executed by such
Non-U.S. Bank, together with any
information, if any, such Non-U.S. Bank chooses
to transmit with such form, and any other
certificate or statement of exemption
required under the Internal Revenue Code or
the regulations issued thereunder.
Each Bank hereby (i) represents and
warrants to the Company that, at the date of
this Agreement, or at the time such Bank
becomes a Bank hereunder, it is
entitled to receive payments of principal
and interest hereunder without
deduction for or on account of any Taxes
imposed by the United States of America
or any political subdivision thereof, and
(ii) acknowledges that in the event
that after the date of this Agreement or
after the date that a Bank becomes a
Bank hereunder, such Bank is no longer
entitled to receive payments or principal
and interest hereunder without deduction
for or on account of any Taxes imposed
by the United States of America or any
political subdivision thereof, such Bank
will be subject to removal pursuant to
Section 13.8 hereof.
(c) Each Non-U.S. Bank hereby agrees, from time to time after
the
initial delivery by such Non-U.S. Bank of
any forms or other information
pursuant to Section 6.4(b), whenever a
lapse in time or change in circumstances
renders such forms, certificates or other
evidence so delivered obsolete or
inaccurate in any material respect, that
such Non-U.S. Bank shall promptly (and
in all events, prior to the next applicable
payment date), deliver to the Agent
at the Payment Office for delivery to the
Company two original copies of any
renewal,
Credit Agreement
<PAGE>
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amendment or additional or successor forms,
properly completed and duly executed
by such Non-U.S. Bank, together with any
other certificate or statement of
exemption required by applicable law or
regulation in order to (i) confirm or
establish such Non-U.S. Bank's complete
exemption from withholding and deduction
of United States Federal Taxes with respect
to payments to such Bank under this
Agreement or (ii) in the case of a change
in law after the date on which such
Non-U.S. Bank became a Bank hereunder that
results in a withholding or deduction
of United States Federal Taxes on payments
hereunder to such Non-U.S. Bank,
establish the status of such Non-U.S. Bank
as other than a United States person
for United States Federal tax purposes and,
to the extent entitled under an
applicable treaty or other law, claim the
benefit of a reduced rate of
withholding and deduction of United States
Federal Taxes with respect to any
such payments under an applicable tax
treaty of the United States, or (iii) if
applicable, confirm or establish that such
Non-U.S. Bank does not act for its
own account with respect to any portion of
any such payments.
(d) If the Company determines in good faith that a reasonable
basis
exists for contesting a Covered Tax with
respect to which the Company has paid
an additional amount under this Section
6.4, the Agent and the Banks, as
applicable, shall, subject to Section
6.4(f), cooperate with the Company in
challenging such Covered Tax at the
Company's expense if requested by the
Company (it being understood and agreed
that neither the Agent nor any Bank
shall have any obligation to contest, or
any responsibility for contesting, any
Tax). If the Agent or a Bank has actual
knowledge that it is entitled to receive
a refund (whether by way of a direct
payment or by clearly identifiable offset
to an amount otherwise owed to the relevant
taxing authority) in respect of a
Covered Tax with respect to which the
Company has paid an additional amount
under this Section 6.4, it shall promptly
notify the Company of the availability
of such refund (unless it was made aware of
such refund by the Company) and
shall, within 30 days after the receipt of
a request from the Company, apply for
such refund at the Company's expense. If
the Agent or any
