CONFORMED COPY
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10.13
$1,000,000,000 REVOLVING CREDIT AGREEMENT
DATED AS OF
JANUARY 19, 1996
AMONG
INTERNATIONAL LEASE FINANCE CORPORATION
UNION BANK OF SWITZERLAND
LOS ANGELES BRANCH
AND
THE OTHER BANKS (AS DEFINED HEREIN)
TABLE OF CONTENTS
Page
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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......................................... 15
Section 2.1. Making of Bid Loans..................................... 15
Section 2.2. Procedure for Bid Loans................................. 15
Section 2.3. Funding of Bid Loans.................................... 18
Section 2.4. Bid Notes............................................... 18
SECTION 3. COMMITTED LOANS AND NOTES....................................... 19
Section 3.1. Agreement to Make Committed Loans....................... 19
Section 3.2. Procedure for Committed Loans........................... 19
Section 3.3. Maturity of Committed Loans............................. 21
Section 3.4. Committed Notes......................................... 21
SECTION 4. INTEREST AND FEES............................................... 21
Section 4.1. Interest Rates.......................................... 21
Section 4.2. Interest Payment Dates.................................. 22
Section 4.3. Setting and Notice of Committed
Loan Rates.............................................. 22
Section 4.4. Facility Fee............................................ 23
Section 4.5. Agent's Fees............................................ 24
Section 4.6. Computation of Interest and Fees........................ 24
SECTION 5. REDUCTION OR TERMINATION OF THE COMMITMENTS; PREPAYMENTS........ 24
Section 5.1. Voluntary Termination or Reduction
of the Commitments...................................... 24
Section 5.2. Voluntary Prepayments................................... 24
SECTION 6. MAKING AND PRORATION OF PAYMENTS; SET-OFF; TAXES................ 25
Section 6.1. Making of Payments...................................... 25
Section 6.2. Pro Rata Treatment; Sharing............................. 25
Section 6.3. Set-off................................................. 26
Section 6.4. Taxes, etc.............................................. 27
SECTION 7. INCREASED COSTS AND SPECIAL PROVISIONS FOR ABSOLUTE RATE LOANS,
LIBOR RATE LOANS AND CD RATE LOANS.............................. 28
Section 7.1. Increased Costs......................................... 28
Section 7.2. Basis for Determining Interest Rate
Inadequate or Unfair.................................... 30
Section 7.3. Changes in Law Rendering Certain
Loans Unlawful.......................................... 31
Section 7.4. Funding Losses.......................................... 31
Section 7.5. Discretion of Banks as to Manner of
Funding................................................. 32
Section 7.6. Conclusiveness of Statements;
Survival of Provisions.................................. 32
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SECTION 8. REPRESENTATIONS AND WARRANTIES................................. 32
Section 8.1. Organization, etc...................................... 32
Section 8.2. Authorization; Consents; No
Conflict............................................... 33
Section 8.3. Validity and Binding Nature............................ 33
Section 8.4. Financial Statements................................... 34
Section 8.5. Litigation and Contingent
Liabilities............................................ 34
Section 8.6. Employee Benefit Plans................................. 34
Section 8.7. Investment Company Act................................. 35
Section 8.8. Public Utility Holding Company Act..................... 35
Section 8.9. Regulation U........................................... 35
Section 8.10. Information............................................ 35
Section 8.11. Compliance with Applicable Laws,
etc.................................................... 36
Section 8.12. Insurance.............................................. 36
Section 8.13. Taxes.................................................. 36
Section 8.14. Use of Proceeds........................................ 36
Section 8.15. Pari Passu............................................. 36
Section 8.16. Ownership and Liens.................................... 36
SECTION 9. COVENANTS...................................................... 37
Section 9.1. Reports, Certificates and Other
Information............................................ 37
Section 9.2. Existence.............................................. 39
Section 9.3. Nature of Business..................................... 39
Section 9.4. Books, Records and Access.............................. 39
Section 9.5. Insurance.............................................. 40
Section 9.6. Repair................................................. 40
Section 9.7. Taxes.................................................. 40
Section 9.8. Compliance............................................. 40
Section 9.9. Merger, Purchase and Sale.............................. 41
Section 9.10. Consolidated Indebtedness to
Consolidated Tangible Net Worth Ratio.................. 41
Section 9.11. Fixed Charge Coverage Ratio............................ 42
Section 9.12. Consolidated Tangible Net Worth........................ 42
Section 9.13. Restricted Payments.................................... 42
Section 9.14. Liens.................................................. 42
Section 9.15. Leases................................................. 45
Section 9.16. Use of Proceeds........................................ 45
Section 9.17. Transactions with Related Parties...................... 46
Section 9.18. Securitization......................................... 46
SECTION 10. CONDITIONS TO LENDING......................................... 46
Section 10.1. Conditions Precedent to All Loans...................... 46
Section 10.2. Conditions to the Availability of
the Commitments........................................ 47
SECTION 11. EVENTS OF DEFAULT AND THEIR EFFECT............................ 49
Section 11.1. Events of Default...................................... 49
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Section 11.2. Effect of Event of Default............................. 51
SECTION 12. THE AGENT..................................................... 52
Section 12.1. Authorization.......................................... 52
Section 12.2. Indemnification........................................ 52
Section 12.3. Action on Instructions of the
Required Banks......................................... 53
Section 12.4. Payments............................................... 53
Section 12.5. Exculpation............................................ 54
Section 12.6. Credit Investigation................................... 55
Section 12.7. UBS and Affiliates..................................... 55
Section 12.8. Resignation............................................ 55
SECTION 13. GENERAL....................................................... 56
Section 13.1. Waiver; Amendments..................................... 56
Section 13.2. Notices................................................ 57
Section 13.3. Computations........................................... 57
Section 13.4. Assignments; Participations............................ 58
Section 13.5. Costs, Expenses and Taxes.............................. 61
Section 13.6. Indemnification........................................ 62
Section 13.7. Regulation U........................................... 62
Section 13.8. Extension of Termination Dates;
Removal of Banks; Substitution
of Banks............................................... 62
Section 13.9. Captions............................................... 65
Section 13.10. Governing Law; Severability............................ 65
Section 13.11. Counterparts; Effectiveness............................ 65
Section 13.12. Further Assurances..................................... 66
Section 13.13. Successors and Assigns................................. 66
Section 13.14. Waiver of Jury Trial................................... 66
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SCHEDULES AND EXHIBITS
Schedule I Schedule of Banks (Sections 1.2 and 13.8)
Schedule II Fees and Margins (Sections 1.2, 4.4 and 4.6)
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 (Section 3.2)
Exhibit D Form of Bid Note (Section 1.2)
Exhibit E Form of Committed Note (Section 1.2)
Exhibit F Fixed Charge Coverage Ratio (Sections 1.2 and 9.11)
Exhibit G Form of Opinion of O'Melveny & ▇▇▇▇▇, 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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REVOLVING CREDIT AGREEMENT
--------------------------
REVOLVING CREDIT AGREEMENT (this "Agreement"), dated as of January 19,
1996, 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 UNION BANK OF SWITZERLAND, acting through its Los Angeles Branch (herein, in
its individual capacity, together with its successors and assigns, called
"UBS"), 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
$1,000,000,000 to the Company on a revolving basis to enable the Company to
support its commercial paper program and for other 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
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this Section 1 and elsewhere in this Agreement shall apply equally to both the
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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
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shall have the following meanings:
Absolute Rate means a rate of interest per annum, expressed as a
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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
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Rate.
Affiliate means, with respect to any Person, any other Person directly
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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.
Agent - see Preamble.
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Aggregate Commitment means $1,000,000,000, as reduced by any reduction
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in the Commitments made from time to time pursuant to Section 5.1 or 13.8.
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Agreement - see Preamble.
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AIG means American International Group, Inc.
---
Assessment Rate means, at any time, the then current rate as
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determined by the Agent after consultation with the Reference Banks, for the
lowest annual assessment payable by banks to the FDIC (or any successor) for the
FDIC's or such successor's insuring dollar deposits in the United States and,
when used with respect to a Loan Period for a CD Rate Loan, shall mean such rate
as in effect from time to time during such Loan Period.
Assignee - see Section 13.4.1.
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Authorized Officer of the Company means any of the Chairman of the
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Board, the President, the Executive Vice President and Chief Financial Officer,
the Treasurer, the Controller and the Assistant Controller of the Company.
Available Commitment - see Section 2.2(a).
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Bank - see Preamble.
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Bank Parties - see Section 13.6.
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Base LIBOR means, with respect to any Loan Period for a LIBOR Rate
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Loan, the rate per annum determined by the Agent to be the arithmetic mean
(rounded to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to the
next higher 1/16 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
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effect from time to time, which rate per annum shall be equal to the higher of
(i) the Prime Rate and (ii) one half of one percent per annum above the Federal
Funds Rate.
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Base Rate Loan means any Loan which bears interest at the Base Rate.
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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 similar to Exhibit B, personally delivered or transmitted by
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facsimile to the Agent.
Bid Borrowing - see Section 2.2(a).
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Bid Loan means a Loan in Dollars that is an Absolute Rate Loan or a
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LIBOR Rate Loan made pursuant to Section 2.
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Bid Note means a promissory note of the Company, substantially in the
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form of Exhibit D, duly completed, evidencing Bid Loans made to the Company, as
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such note may be amended, modified or supplemented or supplanted pursuant to
Section 13.4.1 from time to time.
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Business Day means any day of the year on which banks are open for
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commercial banking business in the city of New York and in 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
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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.
Capitalized Rentals means, as of the date of any determination, the
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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.
CD Base Rate means with respect to any Loan Period for a CD Rate Loan
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the average of the bid rates (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%) quoted at 10:00 a.m.,
New York City time (or as soon thereafter as is practi cable), on the first
Business Day of such Loan Period by two or more New York certificate of deposit
dealers of recognized standing, selected by the Agent, for the purchase at face
value of 30-day, 60-day, 90-day or 180-day, as the case may be, certificates of
deposit sold by the Reference Banks in the secondary market in an amount
substantially equal to the amount of such CD Rate Loan.
CD Rate means, with respect to any Loan Period, the rate per annum
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determined pursuant to the following formula, which rate shall change during
such Loan Period as and when the Reserve Percentage or the Assessment Rate shall
change:
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CDBR
CD Rate = -------- + AR + ARM
1 - RP
where:
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CDBR = CD Base Rate for such Loan Period for a CD Rate
Loan
AR = Assessment Rate
ARM = The applicable rate margin with respect to CD
Rate Loans set forth in Schedule II hereto
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RP = Reserve Percentage
CD Rate Loan means any Loan that bears interest at the CD Rate.
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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
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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).
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Committed Loan means a Loan in Dollars that is a Base Rate Loan, CD
--------------
Rate Loan or LIBOR Rate Loan made pursuant to Section 3.
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Committed Loan Request - see Section 3.2(a).
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Committed Note means a promissory note of the Company, substantially
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in the form of Exhibit E, duly completed, evidencing Committed Loans to the
---------
Company, as such note may be amended, modified or supplemented or supplanted
pursuant to Section 13.4.1 from time to time.
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Company - see Preamble.
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Consolidated Indebtedness means, as of the date of any determination,
-------------------------
the total amount of Indebtedness, less the amount of current and deferred income
taxes and rentals received in advance of the Company and its Subsidiaries
determined on a consolidated basis in accordance with generally accepted
accounting principles in the United States.
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
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resulting from any revaluation write-up of assets subsequent to September 30,
1994 and such other assets as are properly classified as intangible assets, all
determined in accordance with generally accepted accounting principles in the
United States consolidating the Company and its Subsidiaries.
Dollar, and $, refer to the lawful money of the United States.
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ERISA means the Employee Retirement Income Security Act of 1974, as
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amended.
ERISA Affiliate means any corporation, trade or business that is,
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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 limitations, 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.
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Existing Litigation - see Section 10.1.3.
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FASB 13 means the Statement of Financial Accounting Standards No. 13
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(Accounting for Leases) as in effect on the date hereof.
FDIC means the Federal Deposit Insurance Corporation.
----
Federal Funds Rate means, for any day, the rate set forth in the
------------------
weekly statistical release designated as H.15(519), or any successor
publication, published by the Board of Governors of the Federal Reserve System
(including any such successor publication, "H.15(519)") for such day opposite
the caption "Federal Funds (Effective)". If on any relevant day such rate is
not yet published in H.15(519), the rate for such day will be the rate set forth
in the daily statistical release designated as the Composite 3:30 p.m.
Quotations for U.S. Government Securities, or any successor publication,
published by the Federal Reserve Bank of New York (including any such successor
publication, the "Composite 3:30 p.m. Quotations") for such day under the
caption "Federal Funds Effective Rate". If on any relevant day the appropriate
rate for such day is not yet published in either H.15(519) or the Composite 3:30
p.m. Quotations, the
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rate for such day will be the arithmetic mean of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m., New York
City time, on such day by each of three leading brokers of Federal funds trans
actions in New York City, selected by the Agent. The rate for any day which is
not a Business Day shall be the rate for the immediately preceding Business Day.
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)(i) of Item 503 of Regulation S-K
of the Securities and Exchange Commission, as amended from time to time, and
determined pursuant to Paragraphs (d)(2) through (d)(10) of such Item 503 with
the Company as "registrant" (such ratio for the four fiscal quarters ended
September 30, 1995 is attached hereto as Exhibit F); provided, however that if
--------- -------- -------
the Required Banks in their sole 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
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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 all obligations (other than
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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
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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
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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 all obligations of such
------------
Person which in accordance with generally accepted accounting principles in the
United States 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
(f) Guaranties by such Person to the extent required pursuant to the
definition thereof.
Indemnified Liabilities - see Section 13.6.
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Investment means any investment, made in cash or by delivery of any
----------
kind of property or asset, in any Person, whether (i) by acquisition of (x)
shares of stock or similar interest, (y) Indebtedness, or (z) other obligation
or security or (ii) by loan, advance or capital contribution, or otherwise. For
purposes of this Agreement, Investment shall exclude any notes receivable and
any finance or sales-type leases entered into by the Company or any of its
Subsidiaries in the ordinary course of business. The amount of any Investment
shall be the original cost of such Investment plus the cost of all additions
thereto and minus the amount of any portion of such Investment repaid to such
Person in cash as a return of capital, but without any other adjustment for
increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.
LIBOR means with respect to any Loan Period the rate per annum
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(rounded to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to the
next higher 1/16 of 1%), determined pursuant to the following formula:
Base LIBOR
-----------------------------------
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 in Schedule II and
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(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.
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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.
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
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period commencing on such Loan's Funding Date and ending not less than 14 days
thereafter nor more than 183 days thereafter as specified in the Bid Loan
Request related to such Bid Loan, (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
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the Bid Loan Request, as the case may be and (iii) with respect to any CD Rate
Loan, the period commencing on such Loan's Funding Date and ending 30, 60, 90 or
180 days thereafter as selected by the Company pursuant to Section 3.2(a);
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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,
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individually, any Bid Loan or Committed Loan.
Material Adverse Effect shall mean (i) any material adverse effect on
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the business, properties, condition (financial or otherwise) or operations,
present or prospective, 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 obligations hereunder and under the Notes or (iii) any 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
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3(37) of ERISA.
New Litigation - see Section 10.1.3.
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Notes means, collectively, the Bid Notes and the Committed Notes; and
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Note means any individual Bid Note or Committed Note.
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Notice of Competitive Bid Borrowing - see Section 2.2(a).
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Notice Office means the New York Branch of UBS which, as of the date
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hereof, is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇,
Telecopy Number (▇▇▇) ▇▇▇-▇▇▇▇; Telephone (▇▇▇) ▇▇▇-▇▇▇▇.
Operating Lease means any lease other than a Capitalized Lease;
---------------
provided, however, that leases with an original term of less than one year shall
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not be Operating Leases.
Operating Lease Rental of an Operating Lease means, as of the date of
----------------------
any determination thereof, the net present value of the aggregate unpaid amount
due at such date and to become due from the Company or any
-9-
Subsidiary, on a consolidated basis, as lessee under such Operating Lease
discounted at such lessee's incremental borrowing rate or if the interest rate
implicit in such Operating Lease can be practically determined and is smaller,
at such interest rate, such present value and interest rate being determined in
accordance with standard financial practice and such borrowing rate being
determined in accordance with FASB 13, excluding from such aggregate amount all
amounts which are in excess of the minimum aggregate unpaid amount due at such
date and to become due from such lessee under such Operating Lease assuming that
such lessee would take or fail to take all actions with respect to all
termination, renewal, purchase and other options as would produce the least
amount becoming due under such Operating Lease, and "Operating Lease Rentals"
means, as of the date of any determination, the aggregate Operating Lease Rental
of all Operating Leases as of such date.
Participant - see Section 13.4.2.
----------- --------------
Payment Office means the New York Branch of UBS which, as of the date
--------------
hereof, is at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇
▇▇▇▇▇▇▇.
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.
Permitted Acquisitions means purchases or other acquisitions, or
----------------------
Investments by acquisition of shares of stock, for which cumulatively and in the
aggregate since the date hereof the Company has not given consideration in value
exceeding $100,000,000.
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.
-10-
Prime Rate means the rate of interest publicly announced from time to
----------
time by the New York Branch of UBS as its prime commercial lending rate.
Reference Banks means UBS, The Bank of Nova Scotia, Commerzbank AG and
---------------
The Bank of New York.
Related Party means, for purposes of Section 9.17 only, any Person
------------- ------------
(other than a Subsidiary):
(i) which directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, the Company,
(ii) which beneficially owns or holds five percent or more of the
equity interest of the Company, or
(iii) twenty percent or more of the equity interest of which is
beneficially owned or held by the Company or a Subsidiary.
The term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
Reportable Event has the meaning assigned to such term in section 4043
----------------
of ERISA.
Required Banks means Banks having an aggregate Percentage of 66 2/3%
--------------
or more.
Reserve Percentage means for any day, that percentage, expressed as a
------------------
decimal, which is in effect on such day, as prescribed by the Board of Governors
of the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including any marginal, supplemental or emergency reserve
requirements) for a member bank of the Federal Reserve System in New York City
with deposits exceeding one billion dollars in respect of new non-personal time
deposits in dollars in New York City having a maturity comparable to the
relevant Loan Period and in an amount of $100,000 or more. The CD Rate shall be
adjusted automatically on and as of the effective date of any change in the
Reserve Percentage.
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:
-11-
(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;
provided, however, that so long as (i) the Company continues to own not more
-------- -------
than 50% of Pacific Ocean Leasing, Ltd., and (ii) Pacific Ocean Leasing, Ltd.
does not materially alter the manner in which it conducts the business in which
it is currently engaged, Pacific Ocean Leasing, Ltd. shall not be considered a
Subsidiary within the foregoing definition for purposes of this Agreement.
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.
Terminating Bank - see Section 13.8(c).
---------------- ---------------
Termination Date means, with respect to any Bank, the earliest to
----------------
occur of (i) the date that is 364 days after the date of this Agreement or such
later date as may be agreed to by such Bank pursuant to Section 13.8(a), (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 in any case (other than clause (ii) above) such day is not a Business Day,
-----------
the next succeeding Business Day; in all cases, subject to the provisions of
Section 13.8(d).
---------------
UBS - see Preamble.
--- --------
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
-12-
(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 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 of the Company 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
-13-
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, of 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), the rate or rates of interest therefor and 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
(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. For the avoidance of doubt, the Company
may accept offers whose aggregate principal amount is greater than or less
than the requested aggregate amount as specified in the related Notice of
Competitive Bid Borrowing, subject to the proviso in Section 2.1.
-----------
-14-
(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 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 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 2.4. Bid Notes. The Bid Loans of each Bank shall be
---------
evidenced by a Bid Note payable to the order of such Bank in the original
principal amount of the Aggregate Commitment. Each Bank shall record in its
records, or at its option on the schedule attached to its Bid Note, the date and
amount of each Bid Loan made by such Bank, each repayment thereof, and the dates
on which the Loan Period for such Loan shall begin and end. The aggregate
unpaid principal amount so recorded shall be rebuttable presumptive evidence of
the principal amount owing and unpaid on such Note. The failure to so record or
any error in so recording any such amount or any payment thereof shall not,
however, limit or otherwise affect the
-15-
obligations of the Company hereunder or under such Bid Note to repay the
principal amount of each Bid Loan together with all interest accruing thereon.
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 before 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, 13.4 or 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.
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, (ii) at least two Business Days prior to the Funding Date in the case of
CD Rate Loans or (iii) 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 or a CD Rate Loan, request each
Reference Bank to notify the Agent of its applicable rate (as contemplated in
the definitions of Base LIBOR and CD Base Rate). 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, a CD Rate Loan or a
Base Rate Loan and (iv) except for a Base 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
$25,000,000 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
-16-
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 and CD Rate Loans, the
Company shall be liable to each Bank in accordance with Section 7.4(b) 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 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.
-17-
Section 3.4. Committed Notes. The Committed Loans of each Bank shall
---------------
be evidenced by a Committed Note payable to the order of such Bank in the
original principal amount of such Bank's Commitment. Each Bank shall record in
its records, or at its option on the schedule attached to its Committed Note,
the date and amount of each Loan made by such Bank thereunder, each repayment or
prepayment thereof, and, if applicable, the dates on which the Loan Period for
such Loan shall begin and end. The aggregate unpaid principal amount so
recorded shall be rebuttable presumptive evidence of the principal amount owing
and unpaid on such Note. The failure to so record or any error in so recording
any such amount or any payment thereof shall not, however, limit or otherwise
affect the obligations of the Company hereunder or under such Committed Note to
repay the principal amount of each Committed Loan together with all interest
accruing thereon.
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 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;
(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; and
(d) if such Loan is a CD Rate Loan, at a rate per annum equal to the
CD 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
-18-
Day of such month), (ii) with respect to each CD Rate Loan with a Loan Period of
180 days, on the day that is 90 days after the first day of such Loan Period and
(iii) 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 and CD 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 therefor under Section 2.2(a) and
--------------
Section 3.2(a) (as contemplated in the definitions of Base LIBOR and CD Base
--------------
Rate). If as to any Loan Period 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 with
respect to a LIBOR Rate Loan or by 10:30 a.m., New York City time, on the
Funding Date with respect to a CD Rate Loan, then the applicable LIBOR Rate or
CD Rate, as the case may be, 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 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 with respect to the LIBOR Rate or by 10:30 a.m., New
York City time, on the Funding Date with respect to the CD Rate, 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 or
CD 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
-19-
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 March, 1996) 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. 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 4.6. Computation of Interest and Fees. Interest on LIBOR Rate
--------------------------------
Loans, CD Rate Loans and Base Rate Loans where the Base Rate is calculated in
reference to the Federal Funds Rate, and facility and utilization fees shall be
computed for the actual number of days elapsed on the basis of a 360-day year;
interest on Base Rate Loans where the Base Rate is calculated in reference to
the Prime Rate 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, CD 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, the CD Rate or the Base Rate, as applicable.
SECTION 5. REDUCTION OR TERMINATION OF THE COMMITMENTS; 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 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,
-20-
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 or a CD 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) all payments (including those made pursuant to Sections 5.1 and 5.2) 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 or
other holder of a Note 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 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
-21-
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
-------
holder of a Note, 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 Taxes now or
hereafter imposed (except to the extent that such withholding or deduction is
compelled by law or results from the breach, by the recipient of a payment, of
its agreement contained in Section 6.4(b) or would not be required if the
--------------
representation or warranty contained in Section 6.4(b) were true), excluding any
--------------
Taxes generally assessed on the overall net income of the Agent, any Bank, any
Assignee or any Participant, as the case may be, by the government or other
authority of the country in which the Agent, such Bank, such Assignee or such
Participant is incorporated or in which its Funding Office or the office
-22-
through which it is acting is located. If the Company is compelled by law to
make any such deductions or withholdings 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 a payment of its agreement contained in
Section 6.4(b) or would not be required if the representation or warranty
--------------
contained in Section 6.4(b) were true, 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 Taxes are directly asserted against the Agent, any Bank, any
Assignee or any Participant, such payee may pay such Taxes and the Company shall
promptly pay such additional amount (including, without limitation, any
penalties, interest or expenses) as may be necessary in order that the net
amount received by such payee after the payment of such Taxes (including any
Taxes on such additional amount) shall equal the amount such payee would have
received had no such Taxes been asserted. 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) 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,
two United States Internal Revenue Service Forms 1001 or 4224, or any successor
forms, as appropriate, properly completed and claiming complete exemption from
withholding and deduction of United States federal Taxes. Each Bank represents
and warrants to the Company that, at the date of this Agreement, or at the time
such Bank becomes a Bank hereunder pursuant to Section 13.4.1, its Funding
--------------
Office is entitled to receive payments of principal and interest hereunder
without deduction for or on account of any Taxes imposed by the United States or
any political subdivision thereof.
-23-
SECTION 7. INCREASED COSTS AND SPECIAL PROVISIONS FOR ABSOLUTE RATE
LOANS, LIBOR RATE LOANS AND CD RATE LOANS.
Section 7.1. Increased Costs. (a) If (i) Regulation D of the Board
---------------
of Governors of the Federal Reserve System or (ii) after the date hereof, the
adoption of any applicable law, rule or regulation, or any change therein, or
any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or any Funding Office of such
Bank) with any request or directive (whether or not having the force of law) of
any such authority, central bank or comparable agency,
(A) shall subject any Bank (or any Funding Office of such Bank) to
any tax, duty or other charge with respect to its LIBOR Rate Loans, its CD
Rate Loans, its Notes or its obligation to make LIBOR Rate Loans or CD Rate
Loans, or shall change the basis of taxation of payments to any Bank (or
any Funding Office of such Bank) of the principal of or interest on its
LIBOR Rate Loans, its CD Rate Loans or any other amounts due under this
Agreement in respect of its LIBOR Rate Loans, its CD Rate Loans or its
obligation to make LIBOR Rate Loans or CD Rate Loans (except for changes in
the rate of tax on the overall net income of such Bank or its Funding
Office imposed by any Governmental Authority of the country in which such
Bank is incorporated or in which such Bank's Funding Office is located);
(B) shall impose, modify or deem applicable any reserve (including,
without limitation, any reserve imposed by the Board of Governors of the
Federal Reserve System, but excluding any reserve included in the
determination of additional interest pursuant to Section 4.1), special
-----------
deposit, assessment (including any assessment for insurance of deposits) or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Bank (or any Funding Office of such Bank); or
(C) shall impose on any Bank (or any Funding Office of such Bank) any
other condition affecting its LIBOR Rate Loans, its CD Rate Loans, its
Notes or its obligation to make or maintain LIBOR Rate Loans or CD Rate
Loans;
and the result of any of the foregoing is to increase the cost to (or to impose
an additional cost on) such Bank (or any Funding Office of such Bank) of making
or maintaining any LIBOR Rate Loan or CD Rate Loans, or to reduce the amount of
any sum received or receivable by such Bank (or such Bank's Funding Office)
under this Agreement or under its Notes with respect thereto, then within 10
days after demand by such Bank (which demand shall be accompanied by a statement
setting forth the basis of such demand), the Company shall pay directly to such
Bank such additional amount or amounts as will compensate such Bank for such
increased cost or such reduction (without duplication of any amounts which have
been reimbursed pursuant to Section 6.4).
-----------
-24-
(b) If, after the date hereof, any Bank shall determine that the
adoption, effectiveness or phase-in of any applicable law, rule, guideline or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or any Funding Office of such
Bank or any Person controlling such Bank) with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on the capital of such Bank or any Person
controlling such Bank as a consequence of its obligations hereunder to a level
below that which such Bank or such controlling Person could have achieved but
for such adoption, change or compliance (taking into consideration such Bank's
or such controlling Person's policies with respect to capital adequacy), then,
from time to time, within 10 days after demand by such Bank (which demand shall
be accompanied by a statement setting forth the basis of such demand), the
Company shall pay directly to such Bank such additional amount or amounts as
will compensate such Bank or such controlling Person for such reduction.
(c) Each Bank shall promptly notify the Company and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section 7.1 and will
-----------
designate a different Funding Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in such Bank's
sole judgment, be otherwise disadvantageous to such Bank.
Section 7.2. Basis for Determining Interest Rate Inadequate or
--------------------------------------------------
Unfair. If with respect to the Loan Period for any LIBOR Rate Loan or CD Rate
------
Loan:
(a) the Agent is advised by two or more Reference Banks that deposits
in Dollars (in the applicable amounts) are not being offered to such
Reference Banks in the relevant market for such Loan Period, or the Agent
otherwise determines (which determination shall be binding and conclusive
on all parties) that, by reason of circumstances affecting the LIBOR market
or the certificate of deposit market, adequate and reasonable means do not
exist for ascertaining the applicable LIBOR Rate or CD Rate; or
(b) the Required Banks advise the Agent that the LIBOR Rate or CD
Rate, as the case may be, as determined by the Agent will not adequately
and fairly reflect the cost to such Required Banks of maintaining or
funding LIBOR Rate Loans or CD Rate Loans for such Loan Period, or that the
making or funding of LIBOR Rate Loans or CD Rate Loans has become
impracticable as a result of an event occurring after the date of this
Agreement which in such Required Banks' opinion materially affects LIBOR
Rate Loans or CD Rate Loans,
then (i) the Agent shall promptly notify the other parties thereof and (ii) so
----
long as such circumstances shall continue, no Bank shall be under
-25-
any obligation to make any LIBOR Rate Loan or CD Rate Loan, as the case may be.
Section 7.3. Changes in Law Rendering Certain Loans Unlawful. In the
-----------------------------------------------
event that any change in (including the adoption of any new) applicable laws or
regulations, or in the interpretation of applicable laws or regulations by any
Governmental Authority or other regulatory body charged with the administration
thereof, should make it (or in the good faith judgment of such Bank raise a
substantial question as to whether it is) unlawful for a Bank to make, maintain
or fund any LIBOR Rate Loan, then (a) such Bank shall promptly notify each of
the other parties hereto, (b) upon the effectiveness of such event and so long
as such unlawfulness shall continue, the obligation of such Bank to make LIBOR
Rate Loans shall be suspended and any request by the Company for LIBOR Rate
Loans shall, as to such Bank, be deemed to be a request for a Base Rate Loan, if
said LIBOR Rate Loan is a Committed Loan, or an Absolute Rate Loan if said LIBOR
Rate Loan is a Bid Loan and (c) on the last day of the current Loan Period for
such Bank's LIBOR Rate Loans (or, in any event, if such Bank so requests on such
earlier date as may be required by the relevant law, regulation or
interpretation) such Bank's Loans which are LIBOR Rate Loans shall cease to be
maintained as LIBOR Rate Loans and shall thereafter bear interest at a floating
rate per annum equal to the Base Rate, if said LIBOR Rate Loan is a Committed
Loan, or at an Absolute Rate, which Absolute Rate shall be the LIBOR Rate in
effect during such Loan Period, if said LIBOR Rate Loan is a Bid Loan. If at
any time the event giving rise to such unlawfulness shall no longer exist, then
such Bank shall promptly notify the Company and the Agent.
Section 7.4. Funding Losses. The Company hereby agrees that upon
--------------
demand by any Bank (which demand shall be accompanied by a statement setting
forth the basis for the calculations of the amount being claimed) the Company
will indemnify such Bank against any net loss or expense which such Bank may
sustain or incur (including, without limitation, any net loss or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Bank to fund or maintain any LIBOR Rate Loan, CD Rate Loan or
Absolute Rate Loan), as reasonably determined by such Bank, as a result of (a)
any payment or mandatory or voluntary prepayment (including, without limitation,
any payment pursuant to Section 7.3 or any payment resulting from acceleration)
-----------
of any LIBOR Rate Loan, CD Rate Loan or Absolute Rate Loan of such Bank on a
date other than the last day of the Loan Period for such Loan or (b) any failure
of the Company to borrow any Loans on the originally scheduled Funding Date
specified therefor pursuant to this Agreement (including, without limitation,
any failure to borrow resulting from any failure to satisfy the conditions
precedent to such borrowing). For this purpose, all notices to the Agent
pursuant to this Agreement (including, without limitation, all acceptances of
Bids) shall be deemed to be irrevocable.
Section 7.5. Discretion of Banks as to Manner of Funding.
-------------------------------------------
Notwithstanding any provision of this Agreement to the contrary (but subject to
Section 7.1(c)), each Bank shall be entitled to fund and
--------------
-26-
maintain its funding of all or any part of its Loans in any manner it sees fit,
it being understood, however, that for the purposes of this Agreement all
determinations hereunder shall be made as if such Bank had actually funded and
maintained each LIBOR Rate Loan, CD Rate Loan or Absolute Rate Loan during the
Loan Period for such Loan through the purchase of deposits having a maturity
corresponding to such Loan Period and bearing an interest rate equal to the rate
borne by such Loan for such Loan Period.
Section 7.6. Conclusiveness of Statements; Survival of Provisions.
----------------------------------------------------
Determinations and statements of any Bank pursuant to this Section 7 shall be
---------
conclusive absent demonstrable error, and each Bank may use reasonable averaging
and attribution methods in determining compensation pursuant to Section 7.1 or
-----------
7.4. The provisions of this Section 7 shall survive termination of this
--- ---------
Agreement and payment of the Notes.
SECTION 8. REPRESENTATIONS AND WARRANTIES.
To induce the Banks to enter into this Agreement and to make Loans
hereunder, the Company hereby makes the following representations and warranties
to the Agent and the Banks, which representations and warranties shall survive
the execution and delivery of this Agreement and the Notes and the disbursement
of the initial Loans hereunder:
Section 8.1. Organization, etc. The Company is a corporation duly
------------------
organized, validly existing and in good standing under the laws of the State of
California; each corporate Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation; each other Subsidiary (if any) is an entity duly organized and
validly existing under the laws of the jurisdiction of its organization; and
each of the Company and each Subsidiary has the power to own its property and to
carry on its business as now being conducted and is duly qualified and in good
standing as a foreign corporation or other entity authorized to do business in
each jurisdiction where, because of the nature of its activities or properties,
such qualification is required, except where the failure to be so qualified or
in good standing could not reasonably be expected to have a Material Adverse
Effect.
Section 8.2. Authorization; Consents; No Conflict. The execution and
------------------------------------
delivery by the Company of this Agreement and the Notes, the borrowings
hereunder and the performance by the Company of its obligations under this
Agreement and the Notes (a) are within the corporate powers of the Company, (b)
have been duly authorized by all necessary corporate action on the part of the
Company, (c) have received all necessary approvals, authorizations, consents,
registrations, notices, exemptions and licenses (if any shall be required) from
Governmental Authorities and other Persons, except for any such approvals,
authorizations, consents, registrations, notices, exemptions or licenses non-
receipt of which could not reasonably be expected to have a Material Adverse
Effect, (d) do not
-27-
and will not contravene or conflict with any provision of (i) law, (ii) any
judgment, decree or order to which the Company or any Subsidiary is a party or
by which the Company or any Subsidiary is bound, (iii) the charter, by-laws or
other organizational documents of the Company or any Subsidiary or (iv) any
provision of any agreement or instrument binding on the Company or any
Subsidiary, or any agreement or instrument of which the Company is aware
affecting the properties of the Company or any Subsidiary, except with respect
to (i), (ii) and (iv) above, for any such contravention or conflict which could
not reasonably be expected to have a Material Adverse Effect and (e) do not and
will not result in or require the creation or imposition of any Lien on any of
the Company's or its Subsidiaries' properties.
Section 8.3. Validity and Binding Nature. This Agreement is, and the
---------------------------
Notes when duly executed and delivered will be, legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
Section 8.4. Financial Statements. The Company's audited
--------------------
consolidated financial statements as at December 31, 1994, and unaudited
consolidated financial statements as at September 30, 1995, a copy of each of
which has been furnished to each Bank, have been prepared in conformity with
generally accepted accounting principles in the United States applied on a basis
consistent with that of the preceding fiscal year and fairly present the
financial condition of the Company and its Subsidiaries as at such dates and the
results of their operations for the periods then ended, and since the date of
such audited consolidated financial statements there has been no material
adverse change in the business, credit, operations, financial condition or
prospects of the Company and its Subsidiaries taken as a whole.
Section 8.5. Litigation and Contingent Liabilities. All Litigation
-------------------------------------
Actions, taken as a whole, could not reasonably be expected to have a Material
Adverse Effect. Other than any liability incident to such Litigation Actions or
provided for or disclosed in the financial statements referred to in Section
-------
8.4, neither the Company nor any Subsidiary has any contingent liabilities which
---
are material to the business, credit, operations, financial condition or
prospects of the Company and its Subsidiaries taken as a whole.
Section 8.6. Employee Benefit Plans. Each employee benefit plan (as
----------------------
defined in Section 3(3) of ERISA) as to which the Company, or any Subsidiary or
any ERISA Affiliate may have any liability complies in all material respects
with all applicable requirements of law and regulations. During the twelve-
consecutive-month period prior to the execution and delivery of this Agreement,
(i) no steps have been taken to terminate any Plan and no contribution failure
has occurred with respect to any Plan sufficient to give rise to a lien under
section 302(f) of ERISA, (ii) no
-28-
Reportable Event has occurred with respect to any Plan and (iii) neither the
Company nor any ERISA Affiliate has either withdrawn or instituted steps to
withdraw from any Multiemployer Plan, except in any such case for actions which
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect. No condition exists or event or transaction has
occurred in connection with any Plan which could reasonably be expected to
result in the incurrence by the Company, any Subsidiary or any ERISA Affiliate
of any material liability, fine or penalty (imposed by Section 4975 of the Code
or Section 502(i) of ERISA or otherwise). Neither the Company nor any ERISA
Affiliate is a member of, or contributes to, any Multiemployer Plan. Neither the
Company nor any ERISA Affiliate has any contingent liability with respect to any
post retirement benefit under an employee welfare benefit plan (as defined in
section 3(i) of ERISA), other than liability for continuation coverage described
in Part 6 of Title I of ERISA.
Section 8.7. Investment Company Act. The Company is not an
----------------------
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
Section 8.8. Public Utility Holding Company Act. Neither the
----------------------------------
Company nor any Subsidiary is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
Section 8.9. Regulation U. Neither the Company nor any Subsidiary is
------------
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U of the Board of Governors of the Federal Reserve
System).
Section 8.10. Information.
-----------
(a) All information with respect to the Company contained in the
December 6, 1995 memorandum furnished by the Agent to the Banks and all
information heretofore furnished by the Company to the Agent or any Bank is, to
the best of the Company's knowledge after due inquiry, true and accurate in
every material respect as of the date thereof, and none of such information
contains any material misstatement of fact or omits to state any material fact
necessary to make such information not misleading.
(b) All information furnished by the Company to the Agent or any Bank
on and after the date hereof shall be, to the best of the Company's knowledge
after due inquiry, true and accurate in every material respect as of the date of
such information, and none of such information shall contain any material
misstatement of fact or shall omit to state any material fact necessary to make
such information not misleading.
-29-
Section 8.11. Compliance with Applicable Laws, etc. The Company and
-------------------------------------
its Subsidiaries are in material compliance with the requirements of all
applicable laws, rules, regulations, and orders of all Governmental Authorities
(including, without limitation, all applicable environmental laws). Neither the
Company nor any Subsidiary is in default under any agreement or instrument to
which the Company or such Subsidiary is a party or by which it or any of its
properties or assets is bound, which default could reasonably be expected to
have a Material Adverse Effect on the business, credit, operations, financial
condition or prospects of the Company and its Subsidiaries taken as a whole. No
Event of Default or Unmatured Event of Default has occurred and is continuing.
Section 8.12. Insurance. Each of the Company and each Subsidiary
---------
maintains, or, in the case of any property owned by the Company or any
Subsidiary and leased to lessees, has caused such lessees to maintain, insurance
with financially sound and reputable insurers to such extent and against such
hazards and liabilities as is commonly maintained, or caused to be maintained,
as the case may be, by companies similarly situated.
Section 8.13. Taxes. Each of the Company and each Subsidiary has
-----
filed all tax returns which are required to have been filed and has paid, or
made adequate provisions for the payment of, all of its Taxes which are due and
payable, except such Taxes, if any, as are being contested in good faith and by
appropriate proceedings and as to which such reserves or other appropriate
provisions as may be required by generally accepted accounting principles have
been established and except where failure to pay such Taxes, individually or in
the aggregate, cannot reasonably be expected to have a Material Adverse Effect.
Section 8.14. Use of Proceeds. The proceeds of the Loans will be
---------------
used by the Company to support the Company's commercial paper program and for
other general corporate purposes.
Section 8.15. Pari Passu. All obligations and liabilities of the
----------
Company hereunder shall rank at least equally and ratably (pari passu) in
---- -----
priority with all other unsubordinated, unsecured obligations of the Company to
any other creditor.
Section 8.16. Ownership and Liens. Each of the Company and each
-------------------
Subsidiary has title to, or valid leasehold interests in, all of its properties
and assets, real and personal, including the properties and assets, and
leasehold interests reflected in the financial statements referred to in Section
-------
8.4 (other than any properties or assets disposed of in the ordinary course of
---
business) other than such imperfections in title or leasehold interests which
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect, and none of the properties and assets owned by the Company or any of its
Subsidiaries and none of its leasehold interests is subject to any Lien, except
as disclosed in such financial statements or as may be permitted under this
Agreement.
-30-
SECTION 9. COVENANTS.
Until the expiration or termination of the Commitments, and thereafter
until all obligations of the Company hereunder and under the Notes are paid in
full, the Company agrees that, unless at any time the Required Banks shall
otherwise expressly consent in writing, it will:
Section 9.1. Reports, Certificates and Other Information. Furnish to
-------------------------------------------
the Agent with sufficient copies for each Bank which the Agent shall promptly
furnish to each Bank:
9.1.1. Audited Financial Statements. As soon as available, and in
----------------------------
any event within 95 days after each fiscal year of the Company, a copy of
the audited financial statements and annual audit report of the Company and
its Subsidiaries for such fiscal year prepared on a consolidated basis and
in conformity with generally accepted accounting principles in the United
States and certified by Ernst & Young or by another independent certified
public accountant of recognized national standing selected by the Company
and satisfactory to the Required Banks.
9.1.2. Interim Reports. As soon as available, and in any event
---------------
within 50 days after each quarter (except the last quarter) of each fiscal
year of the Company, a copy of the unaudited financial statements of the
Company and its Subsidiaries for such quarter prepared in a manner
consistent with the audited financial statements referred to in Section
-------
9.1.1, signed by the Company's chief financial officer and consisting
-----
of at least a balance sheet as at the close of such quarter and statements
of earnings and cash flows for such quarter and for the period from the
beginning of such fiscal year to the close of such quarter.
9.1.3. Certificates. Contemporaneously with the furnishing of a copy
------------
of each annual audit report and of each set of quarterly statements
provided for in this Section 9.1, a certificate of the Company dated the
-----------
date of delivery of such annual report or such quarterly statements and
signed by the Company's chief financial officer, to the effect that no
Event of Default or Unmatured Event of Default has occurred and is
continuing, or, if there is any such event, describing it and the steps, if
any, being taken to cure it and containing a computation of, and showing
compliance with, each of the financial ratios and restrictions contained in
this Section 9.
---------
9.1.4. Certain Notices. Forthwith upon learning of the occurrence of
---------------
any of the following, written notice thereof, describing the same and the
steps being taken by the Company or the Subsidiary affected with respect
thereto:
(i) the occurrence of an Event of Default or an Unmatured
Event of Default;
-31-
(ii) the institution of any Litigation Action, provided that
--------
the Company need not give notice of any new Litigation Action unless
such Litigation Action, together with all other pending Litigation
Actions, could, if adversely determined, reasonably be expected to
have a Material Adverse Effect;
(iii) the entry of any judgment or decree against the Company or
any Subsidiary if the aggregate amount of all judgments and decrees
then outstanding against the Company and all Subsidiaries exceeds
$10,000,000 after deducting (i) the amount with respect to which the
Company or any Subsidiary is insured and with respect to which the
insurer has not denied coverage in writing, and (ii) the amount for
which the Company or any Subsidiary is otherwise indemnified if the
terms of such indemnification are satisfactory to the Agent and the
Required Banks;
(iv) the occurrence of a Reportable Event with respect to
any Plan; the institution of any steps by the Company, any ERISA
Affiliate, the PBGC or any other Person to terminate any Plan; the
institution of any steps by the Company or any ERISA Affiliate to
withdraw from any Plan; the incurrence of any material increase in the
contingent liability of the Company or any Subsidiary with respect to
any post-retirement welfare benefits; or the failure of the Company or
any other Person to make a required contribution to a Plan if such
failure is sufficient to give rise to a lien under Section 302(f) of
ERISA; provided, however, that no notice shall be required of any of
-------- -------
the foregoing unless the circumstance could reasonably be expected to
have a Material Adverse Effect; or
(v) the occurrence of a material adverse change in the business,
credit, operations, financial condition or prospects of the Company
and its Subsidiaries taken as a whole.
9.1.5. SEC Filings. Promptly after the filing or making thereof,
-----------
copies of all 8-K's (other than 8-K's relating solely to the issuance by
the Company of securities pursuant to an effective registration statement),
10-Q's, 10-K's, and other material reports or registration statements filed
by the Company or any Subsidiary with or to any securities exchange or the
Securities and Exchange Commission.
9.1.6. Other Information. From time to time such other information
-----------------
concerning the Company and its Subsidiaries as any Bank or the Agent may
reasonably request.
Section 9.2. Existence. Maintain and preserve, and, subject to the
---------
provisions of clauses (w), (x), (y) and (z) of Section 9.9, cause each
------- --- --- --- --- -----------
Subsidiary to maintain and preserve, its respective existence as a corporation
or other form of business organization, as the case may be, and all rights,
privileges, licenses, patents, patent rights, copyrights, trademarks, trade
names, franchises and other authority to the extent
-32-
material and necessary for the conduct of its respective business in the
ordinary course as conducted from time to time, except as may be determined by
the Board of Directors of the Company in good faith to wind up and dissolve a
Subsidiary that is not necessary or material to the business of the Company in
its ordinary course as conducted from time to time.
Section 9.3. Nature of Business. Engage, and cause each Subsidiary
------------------
to engage, in substantially the same fields of business as it is engaged in on
the date hereof.
Section 9.4. Books, Records and Access. Maintain, and cause each
-------------------------
Subsidiary to maintain, complete and accurate books and records in which full
and correct entries in conformity with generally accepted accounting principles
in the United States shall be made of all dealings and transactions in relation
to its respective business and activities. Permit, and cause each Subsidiary to
permit, access by the Agent and each Bank to the books and records of the
Company and such Subsidiary during normal business hours, and permit, and cause
each Subsidiary to permit, the Agent and each Bank to make copies of such books
and records.
Section 9.5. Insurance. Maintain, and cause each Subsidiary to
---------
maintain, such insurance as is described in Section 8.12.
------------
Section 9.6. Repair. Maintain, preserve and keep, and cause each
------
Subsidiary to maintain, preserve and keep, its material properties in good
repair, working order and condition, and from time to time make, and cause each
Subsidiary to make, all necessary and proper repairs, renewals, replacements,
additions, betterments and improvements thereto so that at all times the
efficiency thereof shall be fully preserved and maintained. In the case of
properties leased by the Company or any Subsidiary to lessees, the Company may
satisfy its obligations related to such properties under the previous sentence
by causing, or by causing each Subsidiary to cause, such lessees to perform such
obligations.
Section 9.7. Taxes. Pay, and cause each Subsidiary to pay, when due,
-----
all of its Taxes, unless and only to the extent that the Company or such
Subsidiary, as the case may be, is contesting any such Taxes in good faith and
by appropriate proceedings and the Company or such Subsidiary has set aside on
its books such reserves or other appropriate provisions therefor as may be
required by generally accepted accounting principles in the United States,
except where failure to pay such Taxes, individually or in the aggregate, cannot
reasonably be expected to have a Material Adverse Effect.
Section 9.8. Compliance. Comply, and cause each Subsidiary to
----------
comply, in all material respects with all statutes and governmental rules and
regulations applicable to it; and use reasonable efforts to cause, and cause
each Subsidiary to use reasonable efforts to cause, each lessee of property
owned by the Company or any Subsidiary to comply in all material respects with
all statutes, governmental rules and regulations applicable
-33-
to such property or applicable to such lessee in connection with its leasing.
Section 9.9. Merger, Purchase and Sale. Except with respect to any
-------------------------
Permitted Acquisition, not, and not permit any Subsidiary to:
(a) be a party to any merger or consolidation;
(b) transfer, convey, lease or otherwise dispose of all or
substantially all of the assets of the Company and its Subsidiaries taken
as a whole; or
(c) purchase or otherwise acquire all or substantially all the assets
of any Person unless such purchase or acquisition is a Permitted
Acquisition by the Company.
Notwithstanding the foregoing:
(w) the Company may merge or consolidate with a person that is a U.S.
corporation;
(x) any Wholly-owned Subsidiary may merge into the Company or into or
with any other Wholly-owned Subsidiary;
(y) any Wholly-owned Subsidiary may consolidate with any other
Wholly-owned Subsidiary so long as immediately thereafter 100% of the
voting stock or other ownership interest of the resulting Person is owned
by the Company or another Wholly-owned Subsidiary; and
(z) any Wholly-owned Subsidiary may sell, transfer, convey, lease or
assign all or a substantial part of its assets to the Company or another
Wholly-owned Subsidiary;
provided, in each of the cases described in preceding clauses (w), (x), (y) and
-------- ------- --- --- ---
(z), that immediately thereafter and after giving effect thereto no Event of
---
Default or Unmatured Event of Default shall have occurred and be continuing and
in the case of any (i) merger in which the Company is not the surviving entity
or (ii) consolidation to which the Company is a party, the surviving entity or
the Person formed by such consolidation, as the case may be, shall assume the
Company's obligations and performance of the Company's covenants under this
Agreement in a writing satisfactory in form and substance to the Agent.
Section 9.10. Consolidated Indebtedness to Consolidated Tangible Net
------------------------------------------------------
Worth Ratio. Not permit the ratio of Consolidated Indebtedness to Consolidated
-----------
Tangible Net Worth to exceed 600% on and as of the last day of any fiscal year
or 650% at any other time.
Section 9.11. Fixed Charge Coverage Ratio. Not permit the Fixed
---------------------------
Charge Coverage Ratio on the last day of any quarter of any fiscal year of the
Company to be less than 125%.
-34-
Section 9.12. Consolidated Tangible Net Worth. Not permit the
-------------------------------
Company's Consolidated Tangible Net Worth to be less than $1,500,000,000 plus
50% of (a) the cumulative net income (but without deduction for cumulative net
losses) of the Company and its Subsidiaries determined on a ▇▇▇▇▇▇▇ dated basis
in accordance with United States generally accepted accounting principles, (b)
the cumulative equity capital contributions from AIG and (c) the net proceeds
from the sale of preferred stock, in each case for the period from September 30,
1994 to and including the date of any determination hereunder.
Section 9.13. Restricted Payments. Not declare or pay any dividends
-------------------
whatsoever or make any distribution on any capital stock of the Company (except
in shares of, or warrants or rights to subscribe for or purchase shares of,
capital stock of the Company), and not, and not permit any Subsidiary to, make
any payment to acquire or retire shares of capital stock of the Company, at any
time when (i) an Event of Default as described in Section 11.1 has occurred and
------------
is continuing and there are Loans outstanding hereunder or (ii) an Event of
Default as described in Section 11.1.1 has occurred and is continuing and there
--------------
are no Loans outstanding hereunder; provided, however, that notwithstanding the
-------- -------
foregoing, this Section 9.13 shall not prohibit (x) the payment of dividends on
------------
any of the Company's market auction preferred stock that was sold to the public
pursuant to an effective registration statement under the Securities Act of 1933
or (y) the payment of dividends within 30 days of the declaration thereof if
such declaration was not prohibited by this Section 9.13.
------------
Section 9.14. Liens. Not, and not permit any Subsidiary to, create
-----
or permit to exist any Lien upon or with respect to any of its properties or
assets of any kind, now owned or hereafter acquired, or on any income or profits
therefrom, except for
------
(a) Liens existing on date hereof that are reflected in the financial
statements of the Company dated prior to the date hereof;
(b) Liens upon or in any property (other than property acquired for
lease to a Person other than the Company or a Subsidiary) acquired or held
by the Company or a Subsidiary in the ordinary course of business to secure
the purchase price of such property or to secure Indebtedness permitted
under Section 9.15 incurred or guaranteed by the Company or any Subsidiary
------------
prior to, at the time of, or within 60 days after the later of the
acquisition, completion of construction or commencement of full operation
of such property, which Indebtedness was incurred or guaranteed solely for
the purpose of financing the acquisition of such property or construction
or improvements thereon; provided, however, that in the case of any such
-------- -------
acquisition, construction or improvement, the Lien shall not apply to any
property theretofore owned by the Company or a Subsidiary, other than, in
the case of any such construction or improvement, any theretofore
unimproved real property on which the property so constructed, or the
improvement, is located;
-35-
(c) Liens securing the Indebtedness of a Subsidiary owing to the
Company or to a Wholly-owned Subsidiary;
(d) Liens on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company or a Subsidiary
or at the time of a purchase, lease or other acquisition of the properties
of a corporation or firm as an entirety or substantially as an entirety by
the Company or a Subsidiary, provided that any such Lien shall not extend
--------
to or cover any assets or properties of the Company or such Subsidiary
owned by the Company or such Subsidiary prior to such merger,
consolidation, purchase, lease or acquisition, unless otherwise permitted
under this Section 9.14;
------------
(e) leases or subleases granted to others in the ordinary and usual
course of the Company's business;
(f) easements, rights of way, restrictions and other similar charges
or encumbrances not interfering with the ordinary conduct of the business
of the Company or any Subsidiary;
(g) banker's Liens arising, other than by contract, in the ordinary
and usual course of the Company's business;
(h) Liens incurred or deposits made in the ordinary course of
business in connection with surety and appeal bonds, leases, government
contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money),
provided, however, that the obligation so secured is not overdue or is
-------- -------
being contested in good faith and by appropriate proceedings diligently
pursued;
(i) any replacement or successive replacement in whole or in part of
any Lien referred to in the foregoing clauses (a) to (h), inclusive,
----------- ---
provided, however, that the principal amount of any Indebtedness secured by
-------- -------
the Lien shall not be increased and the principal repayment schedule and
maturity of such Indebtedness shall not be extended and (i) such
replacement shall be limited to all or a part of the property which secured
the Lien so replaced (plus improvements and construction on such property),
or (ii) if the property which secured the Lien so replaced has been
destroyed, condemned or damaged and pursuant to the terms of the Lien other
property has been substituted therefor, then such replacement shall be
limited to all or part of such substituted property;
(j) Liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate
proceedings, including Liens arising out of judgments or awards against the
Company or any Subsidiary with respect to which the Company or such
Subsidiary is in good faith prosecuting an appeal or proceedings for
review; or Liens incurred by the Company or any Subsidiary for the purpose
of obtaining a stay or discharge in the
-36-
course of any litigation or other proceeding to which the Company or such
Subsidiary is a party;
(k) carrier's, warehouseman's, mechanic's, landlord's and
materialmen's Liens, Liens for Taxes, assessments and other governmental
charges and other similar Liens, in each case arising in the ordinary
course of business, securing obligations that are not incurred in
connection with the obtaining of any advance or credit and which are either
not overdue or are being contested in good faith and by appropriate
proceedings diligently pursued;
(l) Liens securing Indebtedness of each of the Company's Wholly-owned
Subsidiaries to be incorporated outside the United States for the purpose
of providing 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 or "ECA 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, provided that such Liens shall encumber only the assets
--------
of (including any rights to or interests in any reserve or security deposit
held by) each such Wholly-owned Subsidiary, and provided further, that the
-------- -------
aggregate amount of Indebtedness of all such Wholly-owned Subsidiaries
secured by Liens does not at the time exceed $2 billion during the 1995
fiscal year of the Company and $3 billion thereafter, minus in either case
the amount of outstanding Liens permitted under Section 9.14(m); and
---------------
(m) other Liens securing Indebtedness of the Company or any
Subsidiary in an aggregate amount which, together with all other
outstanding Indebtedness of the Company and the Subsidiaries secured by
Liens not listed in clauses (a) through (l) of this Section 9.14, does not
----------- --- ------------
at the time exceed 12.5% of the Consolidated Tangible Net Worth of the
Company as shown on its audited consolidated financial statements as of the
end of the fiscal year preceding the date of determination minus the amount
of outstanding Liens permitted under Section 9.14(l).
---------------
Section 9.15. Leases. Not, and not permit any Subsidiary to, become
------
obligated, as lessee, under any lease of real or personal property if at the
time of entering into such lease and after giving effect thereto the aggregate
Operating Lease Rentals would exceed 20% of Consolidated Indebtedness.
Section 9.16. Use of Proceeds. Not permit any proceeds of the Loans
---------------
to be used, either directly or indirectly,
(a) for the payment of any dividend or for the repurchase of any of
the Company's equity securities;
-37-
(b) for the purpose, whether immediate, incidental or ultimate, of
"purchasing or carrying any margin stock" within the meaning of Regulation
U of the Board of Governors of the Federal Reserve System, as amended from
time to time;
(c) for the purpose, whether immediate, incidental or ultimate, of
acquiring directly or indirectly any of the outstanding shares of voting
stock of any corporation which (i) has announced that it will oppose such
acquisition or (ii) has commenced any litigation which alleges that any
such acquisition violates, or will violate, applicable law; or
(d) for any other purpose except (i) to support the Company's
commercial paper program or (ii) for general corporate purposes in the
ordinary course of business.
Section 9.17. Transactions with Related Parties. Not, and not permit
---------------------------------
any Subsidiary to, enter into or be a party to any transaction or arrangement,
including, without limitation, the purchase, sale, lease or exchange of property
or the rendering of any service, with any Related Party, except in the ordinary
course of and pursuant to the reasonable requirements of the Company's or such
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than would be obtained in a comparable arm's-
length transaction with a Person not a Related Party.
Section 9.18. Securitization. Promptly after the receipt thereof,
--------------
apply the proceeds from the securitization of assets (aircraft lease portfolio
securitizations), net of expenses related to any such securitization, to the
repayment of Indebtedness.
SECTION 10. CONDITIONS TO LENDING.
Section 10.1. Conditions Precedent to All Loans. Each Bank's
---------------------------------
obligation to make each Loan is subject to the following conditions precedent:
10.1.1. No Default. (a) No Event of Default or Unmatured Event of
----------
Default has occurred and is continuing or will result from the making of
such Loan, (b) the representations and warranties contained in Section 8
---------
are true and correct in all material respects as of the date of such
requested Loan, with the same effect as though made on the date of such
Loan (it being understood that each request for a Loan shall automatically
constitute a representation and warranty by the Company that, as at the
requested date of such Loan, (x) all conditions under this Section 10.1.1
--------------
shall be satisfied and (y) after the making of such Loan the aggregate
principal amount of all outstanding Loans will not exceed the Aggregate
Commitment).
10.1.2. Documents. The Agent shall have received (a) a certificate
---------
signed by an Authorized Officer of the Company as to
-38-
compliance with Section 10.1.1, which requirement shall be deemed satisfied
--------------
by the submission of a properly completed Notice of Competitive Bid
Borrowing or Committed Loan Request and (b) such other documents as the
Agent may reasonably request in support of such Loan.
10.1.3. Litigation. No Litigation Action not disclosed in writing by
----------
the Company to the Agent and the Banks prior to the date of the last
previous Loan hereunder (or, in the case of the initial Loan, prior to the
date of execution and delivery of this Agreement) ("New Litigation") has
been instituted and no development not so disclosed has occurred in any
other Litigation Action ("Existing Litigation"), unless the resolution of
all New Litigation and Existing Litigation against the Company and its
Subsidiaries could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
Section 10.2. Conditions to the Availability of the Commitments. The
-------------------------------------------------
obligations of each Bank hereunder are subject to, and the Banks' Commitments
shall not become available until the date on which each of the following
conditions precedent shall have been satisfied or waived in writing by the
Required Banks:
10.2.1. Revolving Credit Agreement. The Agent shall have received
--------------------------
this Agreement duly executed and delivered by each of the Banks and the
Company and each of the Banks shall have received a fully executed
Committed Note and a fully executed Bid Note.
10.2.2. Evidence of Corporate Action. The Agent shall have received
----------------------------
certified copies of all corporate actions taken by the Company to authorize
this Agreement and the Notes.
10.2.3. Incumbency and Signatures. The Agent shall have received a
-------------------------
certificate of the Secretary or an Assistant Secretary of the Company
certifying the names of the officer or officers of the Company authorized
to sign this Agreement, the Notes and the other documents provided for in
this Agreement to be executed by the Company, together with a sample of the
true signature of each such officer (it being understood that the Agent and
each Bank may conclu sively rely on such certificate until formally advised
by a like certificate of any changes therein).
10.2.4. Good Standing Certificates. The Agent shall have received
--------------------------
such good standing certificates of state officials with respect to the
incorporation of the Company, or other matters, as the Agent or the Banks
may reasonably request.
10.2.5. Opinions of Company Counsel. The Agent shall have received
---------------------------
favorable written opinions of O'Melveny & ▇▇▇▇▇, counsel for the Company,
in substantially the form of Exhibit G, and the Corporate Counsel of the
---------
Company, in substantially the form of Exhibit H.
---------
-39-
10.2.6. Opinion of Agent's Counsel. The Agent shall have received a
--------------------------
favorable written opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Agent,
with respect to documents received by the Agent and the Banks and such
legal matters as the Agent reasonably may require.
10.2.7. Other Documents. The Agent shall have received such other
---------------
certificates and documents as the Agent or the Banks reasonably may
require.
10.2.8. Fees. The Agent shall have received for the account of the
----
Agent, the arrangement fee, as previously agreed to between the Company and
the Agent and the Agent's fees payable to the Funding Date pursuant to
Section 4.5 hereof.
-----------
10.2.9. Material Adverse Change. Since the date of the audited
-----------------------
financial statements identified in Section 8.4 hereof, there shall not have
-----------
occurred any material adverse change in the business, credit, operations,
financial condition or prospects of the Company and its Subsidiaries taken
as a whole.
10.2.10. Termination of Revolving Credit Facilities. The Company
------------------------------------------
shall have paid all amounts owing and otherwise satisfied and discharged
all of its obligations arising under each of the Revolving Credit
Agreements, dated as of February 2, 1995, as amended, among the Company,
the Agent and the banks named therein, and such agreements shall have been
terminated and of no further force and effect, evidence of which shall have
been made available to the Agent.
SECTION 11. EVENTS OF DEFAULT AND THEIR EFFECT.
Section 11.1. Events of Default. Each of the following shall
-----------------
constitute an Event of Default under this Agreement:
11.1.1. Non-Payment of Notes, etc. Default in the payment when due
--------------------------
of any principal of any Loan; or default, and continuance thereof for five
days, in the payment when due of any interest on any Loan or any fees
payable by the Company hereunder.
11.1.2. Non-Payment of Other Indebtedness for Borrowed Money.
----------------------------------------------------
Default in the payment when due (subject to any applicable grace period),
whether by acceleration or otherwise, of any principal of, interest on or
fees incurred in connection with any other Indebtedness of, or guaranteed
by, the Company or any Significant Subsidiary (except (i) any such
Indebtedness of any Subsidiary to the Company or to any other Subsidiary
and (ii) any Indebtedness hereunder) and, if a default in the payment of
interest or fees, continuance of such default for five days, in the case of
interest, or 30 days, in the case of fees, or default in the performance or
observance of any obligation or condition with respect to any such other
Indebtedness if the effect of such default (subject to any applicable grace
period) is
-40-
to accelerate the maturity of any such Indebtedness or to permit the holder
or holders thereof, or any trustee or agent for such holders, to cause such
Indebtedness to become due and payable prior to its expressed maturity;
provided, however, that the aggregate principal amount of all Indebtedness
-------- -------
as to which there has occurred any default as described above shall equal
or exceed $50,000,000.
11.1.3. Bankruptcy, Insolvency, etc. The Company or any Significant
----------------------------
Subsidiary becomes insolvent or generally fails to pay, or admits in
writing its inability or refusal to pay, debts as they become due; or the
Company or any Significant Subsidiary applies for, consents to, or
acquiesces in the appointment of a trustee, receiver or other custodian for
the Company or such Significant Subsidiary or any property thereof, or
makes a general assignment for the benefit of creditors; or, in the
absence of such application, consent or acquiescence, a trustee, receiver
or other custodian is appointed for the Company or any Significant
Subsidiary or for a substantial part of the property of any thereof and is
not discharged within 60 days; or any warrant of attachment or similar
legal process is issued against any substantial part of the property of the
Company or any of its Significant Subsidiaries which is not released within
60 days of service; or any bankruptcy, reorganization, debt arrangement, or
other case or proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding (except the voluntary dissolution,
not under any bankruptcy or insolvency law, of a Significant Subsidiary),
is commenced in respect of the Company or any Significant Subsidiary, and,
if such case or proceeding is not commenced by the Company or such
Significant Subsidiary it is consented to or acquiesced in by the Company
or such Significant Subsidiary or remains for 60 days undismissed; or the
Company or any Significant Subsidiary takes any corporate action to
authorize, or in furtherance of, any of the foregoing.
11.1.4. Non-Compliance with this Agreement. Failure by the Company
----------------------------------
to comply with or to perform any of the Company's covenants herein or any
other provision of this Agreement (and not constituting an Event of Default
under any of the other provisions of this Section 11.1) and continuance of
------------
such failure for 30 days (or, if the Company failed to give notice of such
non-compliance or nonperformance pursuant to Section 9.1.4 within one
-------------
Business Day after obtaining actual knowledge thereof, 30 days less the
number of days elapsed between the date the Company obtained such actual
knowledge and the date the Company gives the notice pursuant to Section
-------
9.1.4, but in no event less than one Business Day) after notice thereof to
-----
the Company from the Agent, any Bank, or the holder of any Note.
11.1.5. Representations and Warranties. Any representation or
------------------------------
warranty made by the Company herein is untrue or misleading in any material
respect when made or deemed made; or any schedule, statement, report,
notice, or other writing furnished by the Company to the Agent or any Bank
is false or misleading in any material respect on the date
-41-
as of which the facts therein set forth are stated or certified; or any
certification made or deemed made by the Company to the Agent or any Bank
is untrue or misleading in any material respect on or as of the date made
or deemed made.
11.1.6. Employee Benefit Plans. The institution by the Company or
----------------------
any ERISA Affiliate of steps to terminate any Plan if, in order to
effectuate such termination, (i) the Company or any ERISA Affiliate would
be required to make a contribution to such Plan or would incur a liability
or obligation to such Plan in an amount in excess of $10,000,000 and (ii)
immediately after giving effect to the payment or satisfaction of such
contribution, liability or obligation (if made or undertaken by the Company
or any Subsidiary) an Event of Default or Unmatured Event of Default would
exist and be continuing; or the institution by the PBGC of steps to
terminate any Plan; or a contribution failure occurs with respect to a Plan
sufficient to give rise to a lien under Section 302(f) of ERISA securing an
amount in excess of $10,000,000.
11.1.7. Litigation. There shall be entered against the Company or
----------
any Subsidiary one or more judgments or decrees in excess of $10,000,000 in
the aggregate at any one time outstanding for the Company and all
Subsidiaries and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days from the entry
thereof, excluding those judgments or decrees for and to the extent to
which the Company or any Subsidiary is insured and with respect to which
the insurer has not denied coverage in writing or for and to the extent to
which the Company or any Subsidiary is otherwise indemnified if the terms
of such indemnification are satisfactory to the Required Banks; and
11.1.8. Change of Ownership. AIG shall cease to own beneficially at
-------------------
least 51% of all of the outstanding shares of the common stock of the
Company.
Section 11.2. Effect of Event of Default. If any Event of Default
--------------------------
described in Section 11.1.3 shall occur, the Commitments (if they have not
--------------
theretofore terminated) shall immediately terminate and all Loans and all
interest and other amounts due hereunder shall become immediately due and
payable, all without presentment, demand or notice of any kind; and, in the case
of any other Event of Default, the Agent may, and upon written request of the
Required Banks shall, declare the Commitments (if they have not theretofore
terminated) to be terminated and all Loans and all interest and other amounts
due hereunder to be due and payable, whereupon the Commitments (if they have not
theretofore terminated) shall immediately terminate and all Loans and all
interest and other amounts due hereunder shall become immediately due and
payable, all without presentment, demand or notice of any kind. The Agent shall
promptly advise the Company and each Bank of any such declaration, but failure
to do so shall not impair the effect of such declaration.
-42-
SECTION 12. THE AGENT.
Section 12.1. Authorization. Each Bank and the holder of each Note
-------------
authorizes the Agent to act on behalf of such Bank or holder to the extent
provided herein and in any other document or instrument delivered hereunder or
in connection herewith, and to take such other action as may be reasonably
incidental thereto. Subject to the provisions of Section 12.3, the Agent will
------------
take such action permitted by any agreement delivered in connection with this
Agreement as may be requested in writing by the Required Banks or if required
under Section 13.1, all of the Banks. The Agent shall promptly remit in
------------
immediately available funds to each Bank or other holder its share of all
payments received by the Agent for the account of such Bank or holder, and shall
promptly transmit to each Bank (or share with each Bank the contents of) each
notice it receives from the Company pursuant to this Agreement.
Section 12.2. Indemnification. The Banks agree to indemnify the
---------------
Agent in its capacity as such (to the extent not reimbursed by the Company),
ratably according to their respective Percentages, from and against any and all
actions, causes of action, suits, losses, liabilities, damages and expenses
which may at any time (including, without limitation, at any time following the
payment of the Notes) be imposed on, incurred by or asserted against the Agent
in any way relating to or arising out of this Agreement, or any documents
contemplated by or referred to herein or the transactions contemplated hereby or
any action taken or omitted by the Agent under or in connection with any of the
foregoing; provided that no Bank shall be liable for the payment to the Agent of
--------
any portion of such actions, causes of action, suits, losses, liabilities,
damages and expenses resulting from the Agent's or its employees' or agents'
gross negligence or willful misconduct. Without limiting the foregoing, subject
to Section 13.5 each Bank agrees to reimburse the Agent promptly upon demand for
------------
its ratable share of any out-of-pocket expenses (including reasonable counsel
fees) incurred by the Agent in such capacity in connection with the preparation,
execution or enforcement of, or legal advice in respect of rights or
responsibilities under, this Agreement or any amendments or supplements hereto
or thereto to the extent that the Agent is not reimbursed for such expenses by
the Company. All obligations provided for in this Section 12.2 shall survive
------------
repayment of the Loans, cancellation of the Notes or any termination of this
Agreement.
Section 12.3. Action on Instructions of the Required Banks. As to
--------------------------------------------
any matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the Agent shall not be
required to exercise any discretion or take any action, but the Agent shall in
all cases be fully protected in acting or refraining from acting upon the
written instructions from (i) the Required Banks, except for instructions which
under the express provisions hereof must be received by the Agent from all Banks
and (ii) in the case of such instructions, from all Banks. In no event will the
Agent be required to take any action which exposes the Agent to personal
liability or which is contrary to this Agreement or applicable law. The
relationship between the
-43-
Agent and the Banks is and shall be that of agent and principal only and nothing
herein contained shall be construed to constitute the Agent a trustee for any
holder of a Note or of a participation therein nor to impose on the Agent duties
and obligations other than those expressly provided for herein.
Section 12.4. Payments. (a) The Agent shall be entitled to assume
--------
that each Bank has made its Loan available in accordance with Section 2.3 or
-----------
Section 3.2(c), as applicable, unless such Bank notifies the Agent at its Notice
--------------
Office prior to 11:00 a.m., New York City time, on the Funding Date for such
Loan that it does not intend to make such Loan available, it being understood
that no such notice shall relieve such Bank of any of its obligations under this
Agreement. If the Agent makes any payment to the Company on the assumption that
a Bank has made the proceeds of such Loan available to the Agent but such Bank
has not in fact made the proceeds of such Loan available to the Agent, such Bank
shall pay to the Agent on demand an amount equal to the amount of such Bank's
Loan, together with interest thereon for each day that elapses from and
including such Funding Date to but excluding the Business Day on which the
proceeds of such Bank's Loan become immediately available to the Agent at its
Payment Office prior to 12:00 Noon, New York City time, at the Federal Funds
Rate for each such day, based upon a year of 360 days. A certificate of the
Agent submitted to any Bank with respect to any amounts owing under this Section
-------
12.4(a) shall be conclusive absent demonstrable error. If the proceeds of such
-------
Bank's Loan are not made available to the Agent at its Payment Office by such
Bank within three Business Days of such Funding Date, the Agent shall be
entitled to recover such amount on demand from the Company, together with
interest thereon for each day that elapses from and including such Funding Date
to but excluding the Business Day on which such proceeds become immediately
available to the Agent prior to 12:00 Noon, New York City time, (i) in the case
of a Bid Loan, at the rate per annum applicable thereto and (ii) in the case of
a Committed Loan, at the rate per annum applicable to Base Rate Loans hereunder,
in either case based upon a year of 360 days. Nothing in this paragraph (a)
-------------
shall relieve any Bank of any obligation it may have hereunder to make any Loan
or prejudice any rights which the Company may have against any Bank as a result
of any default by such Bank hereunder.
(b) The Agent shall be entitled to assume that the Company has made
all payments due hereunder from the Company on the due date thereof unless it
receives notification prior to any such due date from the Company that the
Company does not intend to make any such payment, it being understood that no
such notice shall relieve the Company of any of its obligations under this
Agreement. If the Agent distributes any payment to a Bank hereunder in the
belief that the Company has paid to the Agent the amount thereof but the Company
has not in fact paid to the Agent such amount, such Bank shall pay to the Agent
on demand (which shall be made by telegram, telex, facsimile or personal
delivery) an amount equal to the amount of the payment made by the Agent to such
Bank, together with interest thereon for each day that elapses from and
including the date on which the Agent made such payment to but excluding the
Business Day on
-44-
which the amount of such payment is returned to the Agent at its Payment Office
in immediately available funds prior to 12:00 Noon, New York City time, at the
Federal Funds Rate for each such day, based upon a year of 360 days. If the
amount of such payment is not returned to the Agent in immediately available
funds within three Business Days after demand by the Agent, such Bank shall pay
to the Agent on demand an amount calculated in the manner specified in the
preceding sentence after substituting the term "Base Rate" for the term "Federal
Funds Rate". A certificate of the Agent submitted to any Bank with respect to
amounts owing under this Section 12.4(b) shall be conclusive absent demonstrable
---------------
error.
Section 12.5. Exculpation. The Agent shall be entitled to rely upon
-----------
advice of counsel concerning legal matters, and upon this Agreement and any
Note, security agreement, schedule, certificate, statement, report, notice or
other writing which it believes to be genuine or to have been presented by a
proper person. Neither the Agent nor any of its directors, officers, employees
or agents shall (i) be responsible for any recitals, representations or
warranties contained in, or for the execution, validity, genuineness,
effectiveness or enforceability of, this Agreement, any Note or any other
instrument or document delivered hereunder or in connection herewith, (ii) be
deemed to have knowledge of an Event of Default or Unmatured Event of Default
until after having received actual notice thereof from the Company or a Bank,
(iii) be under any duty to inquire into or pass upon any of the foregoing
matters, or to make any inquiry concerning the performance by the Company or any
other obligor of its obligations or (iv) in any event, be liable as such for any
action taken or omitted by it or them, except for its or their own gross
negligence or willful misconduct. The agency hereby created shall in no way
impair or affect any of the rights and powers of, or impose any duties or
obligations upon, the Agent in its individual capacity.
Section 12.6. Credit Investigation. Each Bank acknowledges, and
--------------------
shall cause each Assignee or Participant to acknowledge in its assignment or
participation agreement with such Bank, that it has (i) made and will continue
to make such inquiries and has taken and will take such care on its own behalf
as would have been the case had the Loans been made directly by such Bank or
other applicable Person to the Company without the intervention of the Agent or
any other Bank and (ii) independently and without reliance upon the Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made and will continue to make its own credit analysis and
decisions relating to this Agreement. Each Bank agrees and acknowledges, and
shall cause each Assignee or Participant to agree and acknowledge in its
assignment or participation agreement with such Bank, that the Agent makes no
representations or warranties about the creditworthiness of the Company or any
other party to this Agreement or with respect to the legality, validity,
sufficiency or enforceability of this Agreement or any Note.
Section 12.7. UBS and Affiliates. UBS and each of its successors as
------------------
Agent shall have the same rights and powers hereunder as any other Bank and may
exercise or refrain from exercising the same as though
-45-
it were not the Agent, and UBS and any such successor and its Affiliates may
accept deposits from, lend money to and generally engage, and continue to
engage, in any kind of business with the Company or any Affiliate thereof as if
UBS or such successor were not the Agent hereunder.
Section 12.8. Resignation. The Agent may resign as such at any time
-----------
upon at least 30 days' prior notice to the Company and the Banks. In the event
of any such resignation, Banks having an aggregate Percentage of more than 50%
shall as promptly as practicable appoint a successor Agent reasonably acceptable
to the Company. If no successor Agent shall have been so appointed, and shall
have accepted such appointment, within 30 days after the retiring Agent's giving
of notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent reasonably acceptable to the Company, which shall be a
commercial bank organized under the laws of the United States of America or of
any State thereof or under the laws of another country which is doing business
in the United States of America and having a combined capital, surplus and
undivided profits of at least $1,000,000,000. Upon the acceptance of any
appointment as Agent hereunder by a suc cessor agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from all further duties and obligations under this Agreement. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Section 12 shall
----------
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement.
SECTION 13. GENERAL.
Section 13.1. Waiver; Amendments. No delay on the part of the Agent,
------------------
any Bank, or the holder of any Loan in the exercise of any right, power or
remedy shall operate as a waiver thereof, nor shall any single or partial
exercise by any of them of any right, power or remedy preclude other or further
exercise thereof, or the exercise of any other right, power or remedy. No
amendment, modification or waiver of, or consent with respect to, any provision
of this Agreement or the Notes shall in any event be effective unless the same
shall be in writing and signed and delivered by the Agent and by Banks having an
aggregate Percentage of not less than the aggregate Percentage expressly
designated herein with respect thereto or, in the absence of such designation as
to any provision of this Agreement or the Notes, by the Required Banks, and then
any amendment, modification, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No amendment,
modification, waiver or consent (i) shall extend or increase the amount of the
Commitments, extend the due date for any amount payable hereunder, reduce or
waive any fee hereunder, change the definition of "Required Banks" or Percentage
in Section 1, amend or modify Section 4.1 or change any of the defined terms
--------- -----------
used in Section 4.1, amend or modify Section 4.4, Section 4.6, Section 11.1.1 or
----------- ----------- ----------- --------------
Section 11.1.8, modify this Section 13.1 or otherwise change the aggregate
-------------- ------------
Percentage required to effect an amendment, modification, waiver or consent
without the written consent of all Banks ,
-46-
(ii) shall waive any of the conditions precedent specified in Section 10.1 for
------------
the making of any Loan without the written consent of the Bank which is to make
such Loan or (iii) shall extend the scheduled maturity or reduce the principal
amount of, or rate of interest on, or extend the due date for any amount payable
under, any Loan without the written consent of the holder of the Note evidencing
such Loan. Amendments, modifications, waivers and consents of the type described
in clause (iii) of the preceding sentence with respect to Bid Loans or Bid Notes
------------
may be effected with the written consent of the holder of such Bid Loans or Bid
Notes and no consent of any other Bank or other holder shall be required in
connection therewith. No provisions of Section 12 shall be amended, modified or
----------
waived without the Agent's written consent.
Section 13.2. Notices. Except as otherwise expressly provided in
-------
this Agreement, any notice hereunder to the Company, the Agent, or any Bank or
other holder of a Loan shall be in writing and, if by telegram, telex, facsimile
or personal delivery, shall be deemed to have been given and received when sent
and, if mailed, shall be deemed to have been given and received three Business
Days after the date when sent by registered or certified mail, postage prepaid,
and addressed to the Company, the Agent, or such Bank (or other holder) at its
address shown below its signature hereto or at such other address as it may, by
written notice received by the other parties to this Agreement, have designated
as its address for such purpose. The Agent, any Bank or the holder of any Note
giving any waiver, consent or notice to, or making any request upon, the Company
hereunder shall promptly notify the Agent thereof. Correspondence of the type
described in Section 2.2 with respect to Bid Loans and notices of Committed Loan
-----------
Requests made by the Company shall, except as otherwise provided herein, be
directed to the persons specified for such purpose for each party on the
signature pages hereof or in subsequent writings among the parties. Additional
copies of certain notices which any party may have requested on the signature
pages hereof need not be delivered at the same time as the primary notices to
such party, but the party delivering such primary notices shall use reasonable
efforts to distribute such copies on the same Business Day as that on which such
primary notices were distributed.
Section 13.3. Computations. Where the character or amount of any
------------
asset or liability or item of income or expense is required to be determined, or
any consolidation or other accounting computation is required to be made, for
the purpose of this Agreement, such determination or calculation shall, at any
time and to the extent applicable and except as otherwise specified in this
Agreement, be made in accordance with generally accepted accounting principles
in the United States applied on a basis consistent with those in effect as at
the date of the Company's audited financial statements referred to in Section
-------
8.4. If there should be any material change in generally accepted accounting
---
principles in the United States after the date hereof which materially affects
the financial covenants in this Agreement, the parties hereto agree to negotiate
in good faith appropriate revisions of such covenants (it being understood,
however, that such covenants shall remain in full force and effect in
-47-
accordance with their existing terms pending the execution by the Company and
the Banks of any such amendment).
Section 13.4. Assignments; Participations. Each Bank may assign, or
---------------------------
sell participations in, its Loans and its Commitment to one or more other
Persons in accordance with this Section 13.4 (and the Company consents to the
------------
disclosure of any information obtained by any Bank in connection herewith to any
actual or prospective Assignee or Participant).
Section 13.4.1. Assignments. Any Bank may with the written consents
-----------
of the Company and the Agent (which consents will not be unreasonably
withheld or delayed) at any time assign and delegate to one or more
commercial banks or other financial institutions (any Person to whom an
assignment and delegation is made being herein called an "Assignee") all or
any fraction of such Bank's Loans and Commitment (which assignment and
delegation shall be of a constant, and not a varying, percentage of such
assigning Bank's Loans and Commitment); each such assignment of a Bank's
Commitment, when considered in aggregate with any simultaneous assignment
by such Bank pursuant to the $1,250,000,000 Revolving Credit Agreement
executed by the parties hereto on the date hereof, shall be in the minimum
aggregate amount of $10,000,000 or in integral multiples of $1,000,000 in
excess thereof; provided that any such Assignee will comply, if applicable,
--------
with the provisions contained in the first sentence of Section 6.4(b) and
--------------
shall be deemed to have made, on the date of the effectiveness of such
assignment and delegation, the representation and warranty set forth in the
second sentence of Section 6.4(b); and provided further, that the Company
-------------- -------- -------
and the Agent shall be entitled to continue to deal solely and directly
with such assigning Bank in connection with the interests so assigned and
delegated to an Assignee until such assigning Bank and/or such Assignee
shall have:
(i) given written notice of such assignment and delegation,
together with payment instructions, addresses and related information
with respect to such Assignee, substantially in the form of Exhibit I,
---------
to the Company and the Agent;
(ii) provided evidence satisfactory to the Company and the Agent
that, as of the date of such assignment and delegation, the Company
will not be required to pay any costs, fees, taxes or other amounts of
any kind or nature with respect to the interest assigned in excess of
those payable by the Company with respect to such interest prior to
such assignment;
(iii) paid to the Agent for the account of the Agent a
processing fee of $2,500; and
(iv) provided to the Agent evidence reasonably satisfactory to
the Agent that the assigning Bank has complied with the provisions of
the last sentence of Section 12.6.
------------
-48-
Upon receipt of the foregoing items and the consents of the Company and the
Agent, (x) the Assignee shall be deemed automatically to have become a party
hereto and, to the extent that rights and obligations hereunder have been
assigned and delegated to such Assignee, such Assignee shall have the rights and
obligations of a Bank hereunder and under the other instruments and documents
executed in connection herewith, and (y) the assigning Bank, to the extent that
rights and obligations hereunder have been assigned and delegated by it, shall
be released from its obligations hereunder. The Agent may from time to time
(and upon the request of the Company or any Bank after any change therein shall)
distribute a revised Schedule I indicating any changes in the Banks party hereto
----------
or the respective Percentages of such Banks. Within five Business Days after
the Company's receipt of notice from the Agent of the effectiveness of any such
assignment and delegation, the Company shall execute and deliver to the Agent
(for delivery to the relevant Assignee) new Notes in favor of such Assignee and,
if the assigning Bank has retained Loans and a Commitment hereunder, replacement
Notes in favor of the assigning Bank (such Notes to be in exchange for, but not
in payment of, the Notes previously held by such assigning Bank). Each such Note
shall be dated the date of the predecessor Notes. The assigning Bank shall
promptly ▇▇▇▇ the predecessor Notes "exchanged" and deliver them to the Company.
Any attempted assignment and delegation not made in accordance with this
Section 13.4.1 shall be null and void.
--------------
The foregoing consent requirement shall not be applicable in the case of,
and this Section 13.4.1 shall not restrict, any assignment or other transfer by
--------------
any Bank of all or any portion of such Bank's Loans to any Federal Reserve Bank;
provided that such Federal Reserve Bank shall not be considered a "Bank" for
--------
purposes of this Agreement.
Section 13.4.2. Participations. Any Bank may at any time sell to one or
--------------
more commercial banks or other Persons (any such commercial bank or other Person
being herein called a "Participant") participating interests in any of its
Loans, its Commitment or any other interest of such Bank hereunder; provided,
--------
however, that
-------
(a) no participation contemplated in this Section 13.4.2 shall
--------------
relieve such Bank from its Commitment or its other obligations hereunder;
(b) such Bank shall remain solely responsible for the performance of
its Commitment and such other obligations hereunder and such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Company hereunder, including the right to approve any amendment,
modification or waiver of any provision of this Agreement (subject to
Section 13.4.2(d) below);
-----------------
(c) the Company and the Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and
obligations under this Agreement;
-49-
(d) no Participant, unless such Participant is an affiliate of such
Bank, or is itself a Bank, shall be entitled to require such Bank to take
or refrain from taking any action hereunder, except that such Bank may
agree with any Participant that such Bank will not, without such
Participant's consent, take any actions of the type described in the third
sentence of Section 13.1;
------------
(e) the Company shall not be required to pay any amount under
Sections 4.1, 6.4 or 7.1 that is greater than the amount which the Company
------------ --- ---
would have been required to pay had no participating interest been sold;
(f) no Participant may further participate any interest in any
Committed Loan (and each participation agreement shall contain a
restriction to such effect). The Company acknowledges and agrees that, to
the extent permitted by applicable law, each Participant shall be
considered a Bank for purposes of Sections 7.1, 7.4, 13.5 and 13.6, and by
------------ --- ---- ----
its acceptance of a participation herein, each Participant agrees to be
bound by the provisions of Section 6.2(b) as if such Participant were a
--------------
Bank; and
(g) such Bank shall have provided to the Agent evidence reasonably
satisfactory to the Agent that such Bank has complied with the provisions
of the last sentence of Section 12.6.
------------
Section 13.5. Costs, Expenses and Taxes. The Company agrees to pay
-------------------------
on demand (a) all out-of-pocket costs and expenses of the Agent (including the
fees and out-of-pocket expenses of counsel for the Agent (and of local counsel,
if any, who may be retained by said counsel) in an amount not to exceed an
amount separately agreed to between the Agent and the Company), in connection
with the preparation, execution, delivery and administration of this Agreement,
the Notes and all other instruments or documents provided for herein or
delivered or to be delivered hereunder or in connection herewith and (b) all
out-of-pocket costs and expenses (including reasonable attorneys' fees and legal
expenses and allocated costs of staff counsel) incurred by the Agent and each
Bank in connection with the enforcement of this Agreement, the Notes or any such
other instruments or documents. Each Bank agrees to reimburse the Agent for
such Bank's pro rata share (based upon its respective Percentage) of any such
costs or expenses incurred by the Agent on behalf of all the Banks and not paid
by the Company other than any fees and out-of-pocket expenses of counsel for the
Agent which exceed the amount which the Company has agreed with the Agent to
reimburse. In addition, the Company agrees to pay, and to hold the Agent and
the Banks harmless from all liability for, any stamp or other Taxes which may be
payable in connection with the execution and delivery of this Agreement, the
borrowings hereunder, the issuance of the Notes or the execution and delivery of
any other instruments or documents provided for herein or delivered or to be
delivered hereunder or in connection herewith. All obligations provided for in
this Section 13.5 shall survive repayment of the Loans, cancellation of the
------------
Notes or any termination of this Agreement.
-50-
Section 13.6. Indemnification. In consideration of the execution and
---------------
delivery of this Agreement by the Agent and the Banks, the Company hereby agrees
to indemnify, exonerate and hold each of the Banks, the Agent, and each of the
officers, directors, employees and agents of the Banks and Agent (collectively
herein called the "Bank Parties" and individually called a "Bank Party") free
and harmless from and against any and all actions, causes of action, suits,
losses, liabilities, damages and expenses, including, without limitation,
reasonable attorneys' fees and disbursements (collectively herein called the
"Indemnified Liabilities"), incurred by the Bank Parties or any of them as a
result of, or arising out of, or relating to (i) this Agreement, the Notes or
the Loans or (ii) the direct or indirect use of proceeds of any of the Loans or
any credit extended hereunder, except for any such Indemnified Liabilities
arising on account of such Bank Party's gross negligence or willful misconduct,
and if and to the extent that the foregoing undertaking may be unenforceable for
any reason, the Company hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. All obligations provided for in this Section
-------
13.6 shall survive repayment of the Loans, cancellation of the Notes or any
----
termination of this Agreement.
Section 13.7. Regulation U. Each Bank represents that it in good
------------
faith is not relying, either directly or indirectly, upon any margin stock (as
such term is defined in Regulation U promulgated by the Board of Governors of
the Federal Reserve System) as collateral security for the extension or
maintenance by it of any credit provided for in this Agreement.
Section 13.8. Extension of Termination Dates; Removal of Banks;
-------------------------------------------------
Substitution of Banks. (a) Not more than 60 days nor less than 45 days prior
---------------------
to the then-effective Termination Date, the Company may, at its option, request
all the Banks then party to this Agreement to extend their scheduled Termination
Dates by an additional 364 days by means of a letter, addressed to each such
Bank and the Agent, substantially in the form of Exhibit J. Each such Bank
---------
electing (in its sole discretion) so to extend its scheduled Termination Date
shall execute and deliver not earlier than the 30th day nor later than the 20th
day prior to the then-effective Termination Date counterparts of such letter to
the Company and the Agent, whereupon (unless Banks with an aggregate Percentage
in excess of 25% decline to extend their respective scheduled Termination Dates,
in which event the Agent shall notify all the Banks thereof and no such
extension shall occur), such Bank's scheduled Termination Date shall be
extended, effective only as of the date that is such Bank's then-current
scheduled Termination Date, to the date that is 364 days after such Bank's then-
current scheduled Termination Date. Any Bank that declines or fails to respond
to the Company's request for such extension shall be deemed to have not extended
its scheduled Termination Date.
(b) With respect to any Bank (i) on account of which the Company is
required to make any deductions or withholdings or pay any additional amounts,
as contemplated by Section 6.4, (ii) on account of which the
-----------
-51-
Company is required to pay any additional amounts, as contemplated by Section
-------
7.1, (iii) for which it is illegal to make a LIBOR Rate Loan, as
---
contemplated by Section 7.3 or (iv)which has declined to extend such
-----------
Bank's scheduled Termination Date and Banks with an aggregate Percentage in
excess of 75% have elected to extend their respective Termination Dates, the
Company may in its discretion, upon not less than 30 days' prior written notice
to the Agent and each Bank, remove such Bank as a party hereto. Each such notice
shall specify the date of such removal (which shall be a Business Day and, if
such Bank has any outstanding Bid Loans, shall (unless otherwise agreed by such
Bank) be on or after the last day of the Loan Period for the Bid Loan of such
Bank having the latest maturity date), which shall thereupon become the
scheduled Termination Date for such Bank.
(c) In the event that any Bank does not extend its scheduled
Termination Date pursuant to subsection (a) above or is the subject of a notice
--------------
of removal pursuant to subsection (b) above, then, at any time prior to the
--------------
Termination Date for such Bank (a "Terminating Bank"), the Company may, at its
option, arrange to have one or more other commercial banks or financial
institutions (which may be a Bank or Banks and each of which shall herein be
called a "Successor Bank") succeed to all or a percentage of the Terminating
Bank's outstanding Loans, if any, and rights under this Agreement and assume all
or a like percentage (as the case may be) of such Terminating Bank's undertaking
to make Loans pursuant hereto and other obligations hereunder (as if (i) in the
case of any Bank electing not to extend its scheduled Termination Date pursuant
to subsection (a) above, such Successor Bank had extended its scheduled
--------------
Termination Date pursuant to such subsection (a) and (ii) in the case of any
--------------
Bank that is the subject of a notice of removal pursuant to subsection (b)
--------------
above, no such notice of removal had been given by the Company). Such succession
and assumption shall be effected by means of one or more agreements supplemental
to this Agreement among the Terminating Bank, the Successor Bank, the Company
and the Agent. On and as of the effective date of each such supplemental
agreement, each Successor Bank party thereto shall be and become a Bank for all
purposes of this Agreement and to the same extent as any other Bank hereunder
and shall be bound by and entitled to the benefits of this Agreement in the same
manner as any other Bank.
(d) On the Termination Date for any Terminating Bank, such
Terminating Bank's Commitment shall terminate and the Company shall pay in full
all of such Terminating Bank's Loans (except to the extent assigned pursuant to
subsection (c) above) and all other amounts payable to such Bank hereunder
--------------
(including any amounts payable pursuant to Section 7.4 on account of such
-----------
payment); provided that if an Event of Default or Unmatured Event of Default
--------
exists on the date scheduled as any Terminating Bank's Termination Date, such
Terminating Bank's scheduled Termination Date shall be extended to the first
Business Day thereafter on which (i) no Event of Default or Unmatured Event of
Default exists (without regard to any waiver or amendment that makes this
Agreement less restrictive for the Company, other than as described in clause
------
(ii) below) or (ii) the Required Banks (which for purposes of this subsection
---- ----------
(d) shall be determined based upon
---
-52-
the respective Percentages and aggregate Commitments of all Banks other than
any Terminating Bank whose scheduled Termination Date has been extended pursuant
to this proviso) waive or amend the provisions of this Agreement to cure all
existing Events of Default or Unmatured Events of Default or agree to permit any
borrowing hereunder notwithstanding the existence of any such event.
Notwithstanding the foregoing, any Terminating Bank may, in its sole discretion,
by notice to the Company and the Agent, terminate such Terminating Bank's
Commitment as of such Terminating Bank's scheduled Termination Date. In the
event that UBS shall become a Terminating Bank, the Required Banks with the
consent of the Company (which consent shall not be unreasonably withheld) shall
appoint another Bank or other Person as Agent, which shall have all of the
rights and obligations of the Agent upon the effective date of and pursuant to
an agreement supplemental hereto among the Company and the Banks, and thereupon
UBS, as Agent, shall be relieved from its obligations as Agent hereunder, it
being understood that the provisions of Section 12 shall inure to the benefit of
----------
UBS as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no such successor Agent shall be appointed within 30
days of the Termination Date of the Agent, then the Agent shall, on behalf of
the Banks, appoint a successor Agent in accordance with the provisions set forth
in Section 12.8 for a resigning Agent.
------------
(e) To the extent that all or a portion of any Terminating Bank's
obligations are not assumed pursuant to subsection (c) above, the Aggregate
--------------
Commitment shall be reduced on the applicable Termination Date and each Bank's
percentage of the reduced Aggregate Commitment shall be revised pro rata to
reflect such Terminating Bank's absence. The Agent shall distribute a revised
Schedule I indicating such revisions promptly after the applicable Termination
----------
Date. Such revised Schedule I shall be deemed conclusive in the absence of
----------
demonstrable error.
(f) The Agent agrees to use reasonable commercial efforts to assist
the Company in locating one or more commercial banks or other financial
institutions to replace any Terminating Bank prior to such Terminating Bank's
Termination Date.
Section 13.9. Captions. Section captions used in this Agreement are
--------
for convenience only and shall not affect the construction of this Agreement.
Section 13.10. Governing Law; Severability. THIS AGREEMENT AND EACH
---------------------------
NOTE SHALL BE A CONTRACT MADE UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES. All obligations of the Company and the rights of the Agent, the
Banks and any other holders of the Notes expressed herein or in the Notes shall
be in addition to and not in limitation of those provided by applicable law.
Whenever possible each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be prohibited by or invalid under applicable law, such
provision shall be
-53-
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
Section 13.11. Counterparts; Effectiveness. This Agreement may be
---------------------------
executed in any number of counterparts and by the different parties on separate
counterparts and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same Agreement.
When counterparts of this Agreement executed by each party shall have been
lodged with the Agent (or, in the case of any Bank as to which an executed
counterpart shall not have been so lodged, the Agent shall have received
telegraphic, telex or other written confirmation of execution of a counterpart
hereof by such Bank), this Agreement shall become effective as of the date
hereof and the Agent shall so inform all of the parties hereto.
Section 13.12. Further Assurances. The Company agrees to do such
------------------
other acts and things, and to deliver to the Agent and each Bank such additional
agreements, powers and instruments, as the Agent or any Bank may reasonably
require or deem advisable to carry into effect the purposes of this Agreement or
to better assure and confirm unto the Agent and each Bank their respective
rights, powers and remedies hereunder.
Section 13.13. Successors and Assigns. This Agreement shall be
----------------------
binding upon the Company, the Banks and the Agent and their respective
successors and assigns, and shall inure to the benefit of the Company, the Banks
and the Agent and the respective successors and assigns of the Banks and the
Agent. Subject to Section 9.9, the Company may not assign any of its rights or
-----------
delegate any of its duties under this Agreement without the prior written
consent of all of the Banks.
Section 13.14. Waiver of Jury Trial. THE COMPANY, THE AGENT AND EACH
--------------------
BANK HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP
EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
-54-
Delivered at Los Angeles, California as of the day and year first
above written.
INTERNATIONAL LEASE FINANCE
CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President and
CFO
By: /s/ ▇▇▇▇▇▇ ▇.▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
1999 Avenue of the Stars
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 69-1400 INTERLEAS BVHL
-55-
Agent: UNION BANK OF SWITZERLAND,
acting through its Los Angeles
Branch, in its individual
corporate capacity and as Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 6831878 UBSLSA
Managing Agents: COMMERZBANK AKTIENGESELLSCHAFT,
LOS ANGELES BRANCH
By: /s/ Christian Jagenberg
---------------------------------
Name: CHRISTIAN JAGENBERG
Title: Senior Vice President and
Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Treasurer
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 678338
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇ AKTIENGESELLSCHAFT,
CAYMAN ISLANDS BRANCH
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Financial Square
▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 175850
Co-Agents: THE BANK OF NEW YORK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By:___________________________________
Name:_________________________________
Title:________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Officer
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 00340602
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ AGENCY
By: /s/ Yukio Yanaka
---------------------------------
Name: YUKIO YANAKA
Title: Senior Vice President
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE CHASE MANHATTAN BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Managing Director
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 62910
-58-
CHEMICAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE DAI-ICHI KANGYO BANK, LTD.,
LOS ANGELES AGENCY
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President and
Joint General Manager
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: ▇▇-▇ ▇▇▇/▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇ BANK AG, LOS ANGELES
BRANCH & CAYMAN ISLANDS BRANCH
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇
AGENCY & GRAND CAYMAN BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 4720286
FIRST INTERSTATE BANK OF CALIFORNIA
By: /s/ ▇▇▇▇▇▇ ▇. Helotes
---------------------------------
Name: ▇▇▇▇▇▇ ▇. HELOTES
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Helotes
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-60-
THE FUJI BANK, LIMITED
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Joint General Manager
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ROYAL BANK OF CANADA
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: Senior Manager
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.▇.
New York, New York 10005-3531
Attention: ▇.▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE SAKURA BANK, LTD.,
LOS ANGELES AGENCY
By: /s/ ▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President and
Assistant General Manager
By:___________________________________
Name:_________________________________
Title:________________________________
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: J.R. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 67-7185
-61-
THE SANWA BANK, LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇. Small
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. SMALL
Title: Vice President and Area
Manager
Park Avenue Plaza
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Small
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 232423 RCA
SOCIETE GENERALE
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Su ▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 188273
Lead Managers: THE ASAHI BANK, LTD.,
LOS ANGELES AGENCY
By: /s/ Jun Kosuge
---------------------------------
Name: JUN KOSUGE
Title: Senior Deputy General Manager
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 67256
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BRANCH
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
General Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Manager Lending Division
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: TRT 177130
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 234476/666755 ▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ - CA
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - NY
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE MITSUI TRUST & BANKING COMPANY,
LIMITED, LOS ANGELES AGENCY
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: General Manager and Agent
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ AND
CAYMAN ISLANDS BRANCHES
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Associate
1211 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Managers: BANCA NAZIONALE DEL LAVORO,
S.p.A. - NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 62840
-▇▇-
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇ AGENCY
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and
General Manager
By:___________________________________
Name:_________________________________
Title:________________________________
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 470598 CENT SF
BANCO DI NAPOLI S.p.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: ▇▇▇▇▇▇
-▇▇-
▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By: /s/ D. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: D. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 7238434
BANQUE NATIONALE DE PARIS
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President and
Manager
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 6734168 BNPLA
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇▇ ▇. Constantinople
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. CONSTANTINOPLE
Title: Director
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Constantinople
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-67-
CIBC, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
CREDIT SUISSE
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Member of Senior Management
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Associate
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST HAWAIIAN BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Title: Vice President
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 7238329
-▇▇-
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
One First Union Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 684-3115
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Papayania
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 6831123
-▇▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
DI TORINO S.p.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Branch Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 220045
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE TOKAI BANK, LTD.
LOS ANGELES AGENCY
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant General Manager
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Kenji Oshigane
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, ext. 8451
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-70-
THE TOYO TRUST & BANKING CO., LTD.,
LOS ANGELES AGENCY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: General Manager
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 215288
Participants: THE BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
CITICORP USA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-71-
SCHEDULE I
SCHEDULE OF BANKS
Bank Commitment
---- ----------
(in millions)
Union Bank of Switzerland..................... $ 56.25
Commerzbank Aktiengesellschaft................ 50.00
Bayerische Hypotheken-und Wechsel-Bank
Aktiengesellschaft........................... 48.75
The Bank of New York.......................... 38.00
The Bank of Nova Scotia....................... 38.00
The Bank of Tokyo, Limited.................... 38.00
The Chase Manhattan Bank, N.A................. 38.00
Deutsche Bank AG.............................. 38.00
Dresdner Bank AG.............................. 38.00
The Fuji Bank, Limited........................ 38.00
Societe Generale.............................. 38.00
Royal Bank of Canada.......................... 37.50
DG Bank Deutsche Genossenschaftsbank.......... 35.00
Chemical Bank................................. 31.50
The Dai-Ichi Kangyo Bank, Ltd................. 31.50
First Interstate Bank of California........... 31.50
The Sakura Bank, Ltd.......................... 31.50
The Sanwa Bank, Limited....................... 31.50
Bayerische Landesbank Girozentrale............ 27.50
The Mitsui Trust & Banking Company, Limited... 27.50
Westdeutsche Landesbank Girozentrale.......... 25.00
The Asahi Bank, Ltd........................... 20.00
Kredietbank NV................................ 20.00
The Tokai Bank, Ltd........................... 18.75
Banco di Napoli S.p.A......................... 16.00
Banca Nazionale del Lavoro, S.p.A............. 15.00
Banque Nationale de Paris..................... 14.00
Banco Central Hispanoamericano................ 12.50
Bank of Hawaii................................ 12.50
Istituto Bancario San Paolo di Torino S.p.A... 12.50
The Toyo Trust & Banking Co., Ltd............. 12.00
Barclays Bank PLC............................. 10.00
CIBC, Inc..................................... 10.00
Credit Suisse................................. 10.00
First Union National Bank of North Carolina... 10.00
The Industrial Bank of Japan, Limited......... 10.00
PNC Bank, National Association................ 10.00
Citicorp USA, Inc............................. 7.50
First Hawaiian Bank........................... 6.25
The Bank of California, N.A................... 4.00
SCHEDULE II
FEES AND MARGINS
(IN BASIS POINTS)
===============================================================================
Facility Fee 7.00
-------------------------------------------------------------------------------
Margins:
LIBOR 28.00
CD 40.50
Base --
--------------------------------------
Competitive Bid Option As Bid by the Banks.
===============================================================================
Exhibit A
FORM OF
NOTICE OF COMPETITIVE BID BORROWING
________________, 19__
Union Bank of Switzerland, as Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Ladies and Gentlemen:
This instrument constitutes a Notice of Competitive Bid Borrowing
under, and as defined by, the $1,000,000,000 Revolving Credit Agreement, dated
as of January 19, 1996 (as amended, modified or supplemented, the "Credit
Agreement"), among International Lease Finance Corporation (the "Company"),
Union Bank of Switzerland, in its individual corporate capacity and as Agent,
and certain financial institutions referred to therein. Terms not otherwise
expressly defined herein shall have the meanings set forth in the Credit
Agreement.
The Company hereby requests (a) Bid Loan(s), subject to the terms of
the Credit Agreement, as follows:
(a) Funding Date: ________________, 19__.
(b) Aggregate principal amount of Bid Loans requested: $____________.
(c) Loan Period(s):/1/
Absolute Rate Loans: ___ days ___ days ___ days
LIBOR Rate Loans: __ months __ months __ months
(d) Account of the Company to be credited: __________
____________________
/1/ The Company may select up to three loan periods per Notice of Competitive
Bid Borrowing.
A-1
The officer of the Company signing this Notice of Competitive Bid
Borrowing hereby certifies that the following statements are true on the date
hereof and will be true on the proposed Funding Date:
(a) Before and after giving effect to the Bid Loans requested hereby, no
Event of Default or Unmatured Event of Default shall have occurred and
be continuing or shall result from the making of such Loan; and
(b) Before and after giving effect to the Bid Loans requested hereby, the
representations and warranties set forth in Section 8 of the Credit
---------
Agreement shall be true and correct in all material respects as of the
date of such requested Loans with the same effect as though made on
the date of such Bid Loans.
Very truly yours,
INTERNATIONAL LEASE FINANCE
CORPORATION
By:_________________________________
Its:________________________________
A-2
Exhibit B
FORM OF
BID FROM [Name of Bank]
(Contact Person:___________)
______________, 19__
Union Bank of Switzerland, as Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Ladies and Gentlemen:
This instrument constitutes a Bid under, and as defined by, the
$1,000,000,000 Revolving Credit Agreement, dated as of January 19, 1996 (as
amended, modified or supplemented, the "Credit Agreement"), among International
Lease Finance Corporation (the "Company"), Union Bank of Switzerland in its
individual capacity and as Agent, and certain financial institutions referred to
therein, including the undersigned. Terms not otherwise expressly defined
herein shall have the meanings set forth in the Credit Agreement.
(1) The Company's related Notice of Competitive Bid Borrowing, dated
_____________, 19__, inviting this Bid has requested a Bid Loan, subject to
the terms and conditions of the Credit Agreement, in the aggregate
principal amount of $____________ with a Funding Date of _______________,
19__.
(2) The undersigned hereby offers to make the following Bid Loan(s)
on the Funding Date:/2/
____________________
/2/ $10,000,000 or a higher integral multiple of $1,000,000.
B-1
(a) Loan Period of ___ days ___ months
-----------------------------------------------------------------------------
Principal Amount Interest Rate or
Minimum Maximum LIBOR +/- Margin
-----------------------------------------------------------------------------
1. $/3/ $* /4/
2. $* $* **
3. $* $* **
4. $* $* **
-----------------------------------------------------------------------------
(3) The undersigned's lending office for the proposed Bid Loan is
________________________.
(4) The undersigned acknowledges that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions precedent set forth in
the Credit Agreement, irrevocably obligate(s) the undersigned to make the Bid
Loan(s) for which any offer(s) are accepted, in whole or in part, in accordance
with the terms of the Credit Agreement.
Very truly yours,
[NAME OF BANK]
By:_________________________________
Its:________________________________
_________________
/3/ $10,000,000 or a higher integral multiple of $1,000,000 for each interest
rate (i.e., Portion) for each Loan Period.
/4/ Specify the interest rate per annum (expressed as a percentage to four
decimal places) in the case of an Absolute Rate Loan and the margin above
or below LIBOR in the case of a LIBOR Rate Loan.
B-2
Exhibit C
FORM OF
COMMITTED LOAN REQUEST
________________, 19__
Union Bank of Switzerland, as Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Ladies and Gentlemen:
This constitutes a Committed Loan Request under, and as defined by,
the $1,000,000,000 Revolving Credit Agreement, dated as of January 19, 1996 (as
amended, modified or supplemented, the "Credit Agreement"), among International
Lease Finance Corporation (the "Company"), Union Bank of Switzerland, in its
individual capacity and as Agent, and certain financial institutions referred to
therein. Terms not otherwise expressly defined herein shall have the meanings
set forth in the Credit Agreement.
The Company hereby requests that the Banks make Committed Loans to it,
subject to the terms and conditions of the Credit Agreement, as follows:
(a) Funding Date: ______________, 19__.
(b) Aggregate principal amount of Committed Loans requested:
$_____________.
(c) Loan Period: _____________.
(e) Type of Loans: [LIBOR Rate Loans] [Base Rate Loans] [CD Rate
Loans]
The officer of the Company signing this Committed Loan Request hereby
certifies that:
(a) Before and after giving effect to the Committed Loans requested
hereby, no Event of Default or Unmatured Event of Default shall have
occurred and be continuing or shall result from the making of such
Loans;
(b) Before and after giving effect to the Loans requested hereby, the
representations and
C-1
warranties set forth in Section 8 of the Credit Agreement shall be
---------
true and correct in all material respects with the same effect as
though made on the date of such Loans; and
(c) After the making of the Loans requested hereby, the aggregate
principal amount of all outstanding Loans will not exceed the
Aggregate Commitment.
Very truly yours,
INTERNATIONAL LEASE FINANCE
CORPORATION
By:__________________________________
Its:_________________________________
C-2
Exhibit D
FORM OF BID NOTE
$1,000,000,000 January 19, 1996
International Lease Finance Corporation, a California corporation (the
"Company"), for value received, hereby promises to pay to the order of [NAME OF
BANK] (the "Bank"), at the New York branch office of Union Bank of Switzerland,
as Agent (the "Agent"), at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ on
January 17, 1997, or at such other place, to such other person or at such other
time and date as provided for in the $1,000,000,000 Revolving Credit Agreement
(as amended, modified or supplemented, the "Credit Agreement"), dated as of
January 19, 1996, among the Company, the Agent, and the financial institutions
named therein, in lawful money of the United States, the principal sum of
$1,000,000,000 Dollars or, if less, the aggregate unpaid principal amount of all
Bid Loans made by the Bank to the Company pursuant to the Credit Agreement.
This Bid Note shall bear interest as set forth in the Credit Agreement for Bid
Borrowings (as defined in the Credit Agreement).
Except as otherwise provided in the Credit Agreement with respect to
LIBOR Rate Loans, if interest or principal on any loan evidenced by this Note
becomes due and payable on a day which is not a Business Day (as defined in the
Credit Agreement) the maturity thereof shall be extended
D-1
to the next succeeding Business Day, and interest shall be payable thereon at
the rate herein specified during such extension.
This Note is one of the Bid Notes referred to in the Credit Agreement.
This Note is subject to prepayment in whole or in part, and the maturity of this
Note is subject to acceleration, upon the terms provided in the Credit
Agreement.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of California, without reference to
principles of conflicts of law.
All Bid Loans made by the Bank to the Company pursuant to the Credit
Agreement and all payments of principal thereof may be indicated by the Bank
upon the grid attached hereto which is a part of this Note. Such notations
shall be rebuttable presumptive evidence of the aggregate unpaid principal
amount of all Bid Loans made by the Bank pursuant to the Credit Agreement.
INTERNATIONAL LEASE FINANCE CORPORATION
By_____________________________________
Title:
D-2
Bid Loans and Payments of Principal
-----------------------------------
Name of
Principal Amount of Unpaid Person
Funding Amount Interest Interest Loan Principal Principal Making
Date of Loan Method Rate Period Paid Balance Notation
-------- --------- -------- -------- ------ --------- --------- --------
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
D-3
Exhibit E
FORM OF COMMITTED NOTE
$_______________ January 19, 1996
International Lease Finance Corporation, a California corporation (the
"Company"), for value received, hereby promises to pay to the order of [NAME OF
BANK] (the "Bank"), at the New York branch office of Union Bank of Switzerland,
as Agent (the "Agent"), at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ on
January 17, 1997, or at such other place, to such other person or at such other
time and date as provided for in the $1,000,000,000 Revolving Credit Agreement
(as amended, modified or supplemented, the "Credit Agreement"), dated as of
January 19, 1996, among the Company, the Agent, and the financial institutions
named therein, in lawful money of the United States, the principal sum of
$_________ Dollars or, if less, the aggregate unpaid principal amount of all
Committed Loans made by the Bank to the Company pursuant to the Credit
Agreement. This Committed Note shall bear interest as set forth in the Credit
Agreement for Base Rate Loans, CD Rate Loans and LIBOR Rate Loans (as defined in
the Credit Agreement), as the case may be.
Except as otherwise provided in the Credit Agreement with respect to
LIBOR Rate Loans, if interest or principal on any loan evidenced by this Note
becomes due and payable on a day which is not a Business Day (as defined in
E-1
the Credit Agreement) the maturity thereof shall be extended to the next
succeeding Business Day, and interest shall be payable thereon at the rate
herein specified during such extension.
This Note is one of the Committed Notes referred to in the Credit
Agreement. This Note is subject to prepayment in whole or in part, and the
maturity of this Note is subject to acceleration, upon the terms provided in the
Credit Agreement.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of California, without reference to
principles of conflicts of law.
All Committed Loans made by the Bank to the Company pursuant to the
Credit Agreement and all payments of principal thereof may be indicated by the
Bank upon the grid attached hereto which is a part of this Note. Such notations
shall be rebuttable presumptive evidence of the aggregate unpaid principal
amount of all Committed Loans made by the Bank pursuant to the Credit Agreement.
INTERNATIONAL LEASE FINANCE CORPORATION
By_____________________________________
Title:
E-2
Committed Loans and Payments of Principal
-----------------------------------------
Name of
Principal Amount of Unpaid Person
Funding Amount Interest Interest Loan Principal Principal Making
Date of Loan Method Rate Period Paid Balance Notation
-------- --------- -------- -------- ------ --------- --------- --------
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
E-3
Exhibit F
FIXED CHARGE COVERAGE RATIO/5/
FOR THE PERIOD ENDED SEPTEMBER 30, 1995
12 Months Ended
September 30, 1995
(Dollars in thousands)
----------------------
Earnings
Net Income................................... $185,162
Add:
Provision for income taxes................. 110,732
Fixed charges.............................. 558,401
Less:
Capitalized interest....................... (51,823)
----------------------
Earnings as adjusted (A)..................... 802,472
======================
Preferred dividend requirements.............. $ 11,428
Ratio of income before provision for
income taxes to net income................ 156%
----------------------
Preferred dividend factor on
pretax basis............................... 17,866
Fixed charges
Interest expense........................... 506,578
Capitalized interest....................... 51,823
Estimate of minimum rents under
operating leases representing the
interest factor.......................... 0
Fixed charges as adjusted.................... 558,401
----------------------
Fixed charges and preferred
stock dividends (B)........................ $576,267
======================
Ratio of earnings to fixed charges and
preferred stock dividends ((A) divided
by (B))*..................................... 1.39 to 1.00
======================
__________________________
/5/ As calculated pursuant to Section 9.11 and the definition of Fixed Charge
------------
Coverage Ratio set forth in Section 1.2.
-----------
F-1
Exhibit G
January 19, 1996
To the Banks and the Agent
Referred to Below
c/o Union Bank of Switzerland
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as special counsel for International Lease Finance
Corporation (the "Company") in connection with a $1,250,000,000 Revolving Credit
Agreement and a $1,000,000,000 Revolving Credit Agreement, in each case dated as
of January 19, 1996 among the Company, Union Bank of Switzerland acting through
its Los Angeles Branch, in its individual capacity and as Agent, and certain
financial institutions ("Banks") signatory thereto (collectively, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein as therein
defined.
In our capacity as such counsel, we have examined originals, or copies
certified or otherwise identified to our satisfaction as being true copies of
such records, documents or other instruments as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below. We have been
furnished, and have relied upon, certificates of officers of the Company with
respect to certain factual matters regarding the Company. As to matters of
fact, we have also relied on the representations and warranties made by the
Company in the Credit Agreement. In addition, we have obtained and relied upon
such certificates and assurances from public officials as we have deemed
necessary.
Except with respect to the Company and its Subsidiaries, in our review
and examination we have assumed the authenticity of documents submitted to us as
originals and the conformity to authentic original documents of all documents
submitted to us as conformed or photostatic copies. For the purpose of the
opinions hereinafter expressed, we have assumed the due execution and delivery,
pursuant to due authorization, of each document referred to in this opinion by
each party thereto other than the Company and its subsidiaries, that each
document constitutes the legally valid and binding obligation of each such other
party and that such other person is duly organized, validly
G-1
The Banks and the Agent -2-
existing and in good standing under the laws of its jurisdiction of
organization.
We have investigated such questions of law for the purpose of
rendering this opinion as we have deemed necessary. We are opining herein as to
the effect on the subject transactions of only United States federal law and the
laws of the State of California.
Upon the basis of the foregoing, we are of the opinion that:
1. Each of the Company and Interlease Management Corporation,
Interlease Aviation Corporation, Atlantic International Aviation Holdings, Inc.,
Aircraft SPC-1, Inc., Aircraft SPC-2, Inc. and ILFC Aircraft Holding Corporation
has been duly incorporated and is existing and in good standing under the laws
of the State of California.
2. The Company has the corporate power to own its properties and
conduct its business as described in the Company's Annual Report on Form 10-K
for its fiscal year ended December 31, 1994.
3. The Company has the corporate power and corporate authority to
enter into the Credit Agreement, to make the borrowings under the Credit
Agreement, to execute and deliver the Notes and to incur the obligations
provided for therein, all of which have been duly authorized by all necessary
corporate action on the part of the Company.
4. No authorizations, consents, approvals, registrations, filings
and licenses with or from any California or federal court or governmental agency
or body are necessary for the borrowing, the execution and delivery of the
Credit Agreement and the Notes, and the performance by the Company of its
obligations thereunder and under the Notes.
5. The Credit Agreement and the Notes have been duly executed and
delivered by the Company and constitute the legally valid and binding
obligations of the Company enforceable against the Company in accordance with
their respective terms.
6. Neither the execution and delivery of the Credit Agreement by the
Company, nor the performance thereof by the Company on or prior to the date
hereof nor the payment of the Notes violates the Articles of Incorporation or
Bylaws of the
G-2
The Banks and the Agent -3-
Company, breaches or results in a default under any of the agreements,
instruments, contracts, orders, injunctions or judgments identified to us in an
officer's certificate of the Company (a copy of which is being delivered to you
concurrently herewith) as agreements, instruments, contracts, orders,
injunctions or judgments binding on the Company or by which its assets are bound
which have provisions relating to the issuance by the Company of debt and which
the breach of, or default under, would have a Material Adverse Effect on the
Company and its Subsidiaries taken as a whole, or violates any present federal
or California statute, rule or regulation binding on the Company or its assets.
7. The making of the Loans and the use of the proceeds thereof as
provided in the Credit Agreement will not violate Regulation U, G, T or X of the
Board of Governors of the Federal Reserve System.
8. The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
Our opinions in paragraph 5 above as to the validity, binding effect
or enforceability of the Credit Agreement and the Notes are subject to
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally, general principles of equity, including
(without limitation) concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of specific performance or
injunctive relief, regardless of whether considered in a proceeding in equity or
at law.
Our opinions rendered in paragraphs 4 and 6 above are based upon our
review only of those statutes, rules and regulations which, in our experience,
are normally applicable to transactions of the type contemplated by the Credit
Agreement and the Notes.
In rendering our opinions in paragraph 4 above, we have assumed that
each Bank is a sophisticated financial institution capable of evaluating the
merits and risks relating to the Notes, and that each Bank has been provided
access to such information relating to the Company as such Bank has requested.
Except as expressly set forth in paragraph 7 above, we are not
expressing any opinion as to the effect of the Agent's or any Bank's compliance
with any state or federal laws or regulations applicable to the transactions
contemplated by the
G-3
The Banks and the Agent -4-
Company because of the nature of the Agent's or any Bank's business.
This opinion is furnished to you in connection with the Company's
execution and delivery of the Credit Agreement, is solely for your benefit and
the benefit of your successors and assigns, and may not be relied upon by, nor
may copies be delivered to, any other person, without our prior written consent.
Very truly yours,
G-4
Exhibit H
January 19, 1996
To the Banks and the Agent
Referred to Below
c/o Union Bank of Switzerland
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I am General Counsel for International Lease Finance Corporation (the
"Company") and am rendering this opinion in connection with a $1,250,000,000
Revolving Credit Agreement and a $1,000,000,000 Revolving Credit Agreement, in
each case dated as of January 19, 1996 among the Company, Union Bank of
Switzerland acting through its Los Angeles Branch, in its individual capacity
and as Agent, and certain financial institutions ("Banks") signatory thereto
(collectively, the "Credit Agreement"). Terms defined in the Credit Agreement
are used herein as therein defined.
I have examined originals, or copies certified or otherwise identified
to my satisfaction as being true copies, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as I have deemed necessary or advisable for
purposes of this opinion. I am opining herein as to the effect on the subject
transactions of only United States federal law and the laws of the State of
California.
Upon the basis of the foregoing, I am of the opinion that:
1. The Company is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction in which
the ownership or leasing of its property or the conduct of its business requires
it to be so qualified; provided, however, that the Company may not be so
-------- -------
qualified in certain jurisdictions, the effect of which would not have a
Material Adverse Effect on the Company.
2. To the best of my knowledge, Interlease Aviation Corporation,
ILFC Aircraft Holding Corporation, Interlease
H-1
The Banks and the Agent -2-
Management Corporation, Aircraft SPC-1, Inc., Aircraft SPC-2, Inc. and Atlantic
International Aviation Holdings, Inc., a wholly owned subsidiary of Interlease
Management Corporation, are the only domestic Subsidiaries of the Company.
3. No Subsidiary of the Company nor all of the Subsidiaries of the
Company taken as a whole is a "significant subsidiary" as defined in Rule 1-02
of Regulation S-X promulgated under the Securities Exchange Act of 1934, as
amended.
4. There is no pending or, to the best of my knowledge, threatened
action, suit or proceeding before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its Subsidiaries which,
individually or in the aggregate, would have a Material Adverse Effect on the
Company and its Subsidiaries taken as a whole.
This opinion is furnished to you in connection with the Company's
execution and delivery of the Credit Agreement, is solely for your benefit and
the benefit of your successors and assigns, and may not be relied upon by, nor
may copies be delivered to, any other person without my prior written consent.
Very truly yours,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
General Counsel
H-2
Exhibit I
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _______________, 199_ between [ASSIGNOR] (the
"Assignor") and [ASSIGNEE] (the "Assignee").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the $1,000,000,000 Revolving Credit Agreement dated as of January 19,
1996 (the "Credit Agreement") among International Lease Finance Corporation (the
"Company"), the Assignor and Union Bank of Switzerland, in its individual
corporate capacity and as Agent (the "Agent"), and certain financial
institutions referred to therein;
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Committed Loans in an aggregate principal amount at any time
outstanding not to exceed $___________;
WHEREAS, Committed Loans and Bid Loans made by the Assignor under the
Credit Agreement in the respective aggregate principal amounts of $____________
and $____________ are outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $ /6/ (the "Assigned
-------
Amount"), together with $ * aggregate principal amount outstanding of
---------
Committed Loans and $ /7/ aggregate principal amount outstanding of Bid
-------
Loans (collectively, the "Assigned Loans"), and the Assignee proposes to accept
assignment of such rights and assume the corresponding obligations from the
Assignor on the terms set forth in the Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
____________________
/6/ See Section 13.4.1 for minimum requirements.
--------------
/7/ Assignment of Bid Loans is optional.
I-1
SECTION 1. Definitions. All capitalized terms not otherwise defined
-----------
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
----------
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount and the Assigned Loans, and the Assignee hereby
accepts such assignment from the Assignor and assumes all of the obligations of
the Assignor under the Credit Agreement to the extent of the Assigned Amount and
the Assigned Loans. Upon the execution and delivery hereof by the Assignor, the
Assignee, the Company and the Agent and the payment of the amounts specified in
Section 3 required to be paid on the date hereof (i) the Assignee shall, as of
---------
the date hereof, succeed to the rights and be obligated to perform the
obligations of a Bank under the Credit Agreement with a Commitment in an amount
equal to the Assigned Amount, and (ii) the Commitment of the Assignor shall, as
of the date hereof, be reduced by a like amount and the Assignor released from
its obligations under the Credit Agreement to the extent such obligations have
been assumed by the Assignee. The assignment provided for herein shall be
without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
--------
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
---------
date hereof in Federal funds an amount equal to $_________/8/. It is understood
that facility fees accrued to the date hereof are for the account of the
Assignor and such fees accruing from and including the date hereof are for the
account of the Assignee. Each of the Assignor and the Assignee hereby agrees
that if it receives any amount under the Credit Agreement which is for the
account of the other party hereto, it shall receive the same for the account of
such other party to the extent of such other party's interest therein and shall
promptly pay the same to such other party.
SECTION 4. Consent of the Company and the Agent. This Agreement is
------------------------------------
conditioned upon the consent of the Company and the Agent pursuant to Section
-------
13.8 of the CreditAgreement. The execution of this Agreement by the Company and
----
the Agent is evidence of this consent. Pursuant to Section 13.8 the Company
------------
agrees to execute and deliver a Bid
__________________
/8/ Amount should combine principal and face together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any
portion of any fee to be paid by the Assignor to the Assignee. It may be
preferable in an appropriate case to specify these amounts generically or
by formula rather than as a fixed sum.
I-2
Note and a Committed Note, each payable to the order of the Assignee and
evidencing the assignment and assumption provided for herein. The Company also
agrees to execute replacement Notes in favor of the Assignor if the Assignor has
retained any Commitment.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
------------------------
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Company, or the validity and enforceability of the obligations of the Company in
respect of the Credit Agreement or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Company.
SECTION 6. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of California.
SECTION 7. Counterparts. This Agreement may be signed in any number
------------
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By___________________________
Title:
[ASSIGNEE]
By___________________________
Title:
I-3
Consented, and with respect
to Section 4, agreed:
INTERNATIONAL LEASE FINANCE
CORPORATION
By___________________________
Title:
Consented:
UNION BANK OF SWITZERLAND,
as Agent
By___________________________
Title:
By___________________________
Title:
I-4
Exhibit J
FORM OF REQUEST FOR EXTENSION OF
TERMINATION DATE
___________, 19__
[ADDRESSED TO EACH BANK] [ADDRESSED TO THE AGENT]
Attention:
Ladies and Gentlemen:
This instrument constitutes [a notice to the Agent of] a request for
the extension of the Termination Date pursuant to Section 13.8 of the
------------
$1,000,000,000 Revolving Credit Agreement, dated as of January 19, 1996 (as
amended, modified or supplemented, the "Credit Agreement"), among International
Lease Finance Corporation (the "Company"), Union Bank of Switzerland, in its
individual corporate capacity and as Agent, and certain financial institutions
referred to therein. Terms not otherwise expressly defined herein shall have
the meanings set forth in the Credit Agreement.
The Company [hereby requests that you extend your] [has sent a letter
to each Bank that is now a party to the Credit Agreement asking such Bank to
extend its] now scheduled Termination Date under the Credit Agreement by 364
days.
The officer of the Company signing this instrument hereby certifies
that:
(a) Before and after giving effect to the extension of the Termination
Date requested hereby, no Event of Default or Unmatured Event of Default shall
have occurred and be continuing [and all Loans payable prior to the date hereof
shall have been paid in full]; and
(b) Before and after giving effect to the extension of the Termination
Date requested hereby, the representations and warranties set forth in Section 8
---------
of the Credit
J-1
Agreement shall be true and correct in all material respects with the same
effect as though made on the date hereof.
Very truly yours,
INTERNATIONAL LEASE FINANCE
CORPORATION
By:__________________________
Its:_________________________
Confirmed and accepted, subject to the
terms and conditions of the Credit
Agreement, as of the date first above
written:
[NAME OF BANK]
By:___________________________
Its:
J-2