<PAGE>
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
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S>
<C>
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
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S>
<C>
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
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S>
<C>
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
</TABLE>
iii
<PAGE>
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)
iv
<PAGE>
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.
Credit Agreement
<PAGE>
-2-
"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
Credit Agreement
<PAGE>
-3-
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.
Credit Agreement
<PAGE>
-4-
"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
Credit Agreement
<PAGE>
-5-
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
Credit Agreement
<PAGE>
-6-
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
Credit Agreement
<PAGE>
-7-
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
Credit Agreement
<PAGE>
-8-
(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),
Credit Agreement
<PAGE>
-9-
(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
Credit Agreement
<PAGE>
-10-
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
Credit Agreement
<PAGE>
-11-
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
Credit Agreement
<PAGE>
-12-
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 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:
(i) cancel
such proposed Bid Borrowing by giving the
Agent notice to that effect, or
Credit Agreement
<PAGE>
-13-
(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. 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.
(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.
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
Credit Agreement
<PAGE>
-14-
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).
(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.
Credit Agreement
<PAGE>
-15-
(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(a) 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 (or the date contemplated
by Section 5.3 if the Term-Out Option is in
effect), a Committed Loan made by a
Bank shall 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
(or the date contemplated by Section 5.3 if
the Term-Out Option is in effect).
SECTION 4. INTEREST
AND FEES.
Credit Agreement
<PAGE>
-16-
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 (or the date contemplated by
Section 5.3 if the Term-Out Option is in
effect), 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. 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.
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
Credit Agreement
<PAGE>
-17-
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.
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, 2003)
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, (i) 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 and (ii)
during any period that the aggregate
outstanding principal amount of the Loans
exceeds 66.66% of the Aggregate
Commitment, a utilization fee in addition
to the utilization fees accruing
pursuant to clause (i) above 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 elapsed on the
Credit Agreement
<PAGE>
-18-
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 5.3. Term-Out Option. The Company may, by notice to
the Agent not less than 10 days prior to
the then-effective Termination Date,
subject to the conditions set forth below
in this Section 5.3, elect to convert
the aggregate outstanding principal amount
of the Committed Loans of each Bank
as of such then-effective Termination Date
to a term loan of such Bank in said
amount (herein collectively called "Term
Loans" and individually each called a
"Term Loan"). Each Term Loan shall bear
interest, from and including such
then-effective Termination Date until the
payment thereof in full, at a rate per
annum equal to (x) in the case such Term
Loan is a Base Rate Loan, the Base Rate
from time to time in effect and (y) in the
case such Term Loan is a LIBOR Rate
Loan, the LIBOR Rate applicable to the Loan
Period for
Credit Agreement
<PAGE>
-19-
such Term Loan, and in each case shall
otherwise constitute a Committed Loan for
all purposes of this Agreement. The Company
agrees to repay to the Agent for
account of the Banks the unpaid principal
amount of the Term Loans on the date
364 days after such then-effective
Termination Date or, if such date is not a
Business Day, the immediately preceding
Business Day (and any outstanding
Committed Note shall be deemed amended
accordingly). Once repaid or prepaid
(other than as contemplated by Section
3.2(d)), Term Loans cannot be reborrowed.
Anything in this Section 5.3 to the
contrary notwithstanding, any such
conversion shall be subject to the
conditions precedent that (i) no Unmatured
Event of Default or Event of Default shall
have occurred and be continuing on
such then-effective Termination Date and
(ii) the representations and warranties
made by the Company in Section 8 shall be
true on and as of such then-effective
Termination Date with the same force and
effect as if made on and as of such
date. Each notice of conversion delivered
by the Company in accordance with this
Section 5.3 shall constitute a
certification by the Company to the effect set
forth in the preceding sentence (both as of
the date of such notice and, unless
the Company, after delivery of such notice,
otherwise notifies the Agent prior
to such then-effective Termination Date, as
of such date). Notwithstanding
anything in this Agreement to the contrary,
facility fees contemplated by
Section 4.4 and utilization fees
contemplated by Section 4.5 shall cease to
accrue after the effectiveness of the
Term-Out Option.
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 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
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 shall be made by the Company
directly to the Persons entitled
thereto.
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,
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
Credit Agreement
<PAGE>
-20-
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.
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 bankers'
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,
Credit Agreement
<PAGE>
-21-
(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 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
Credit Agreement
<PAGE>
-22-
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 (i
