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EXHIBIT 4.1
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COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
among
SOUTHWEST AIRLINES CO.,
THE BANKS PARTY HERETO,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Documentation Agent,
NATIONSBANK OF TEXAS, N.A.,
as Syndication Agent,
THE CHASE MANHATTAN BANK,
as Auction Administration Agent,
and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Administrative Agent
As of May 6, 1997
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TABLE OF CONTENTS
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ARTICLE I - DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.1 Computation of Time Periods. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE II - LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.1 Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.2 Competitive Bid Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.3 Committed Borrowing Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.4 Refinancings; Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.5 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.6 Termination and Reduction of Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.7 Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.8 Loan Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.9 Interest on Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.10 Interest on Overdue Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.11 Alternate Rate of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.12 Prepayment of Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 2.13 Reserve Requirements; Change in
Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 2.14 Change in Legality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 2.15 INDEMNITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 2.16 Pro Rata Treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 2.17 Sharing of Setoffs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 2.18 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 2.19 Tax Forms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 2.20 Calculation of LIBO Rates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 2.21 Booking Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 2.22 Quotation of Rates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE III - CONDITIONS OF LENDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 3.1 Conditions Precedent to Initial
Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 3.2 Conditions Precedent to Each Committed
Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 3.3 Conditions Precedent to Each Competitive
Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 3.4 Legal Details. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE IV - REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 4.1 Organization, Authority, and
Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 4.2 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 4.3 Compliance with Agreement and Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
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Section 4.4 Authorization; No Breach; and Valid
Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 4.5 Litigation and Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 4.6 Ownership of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 4.7 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 4.8 Approvals Required. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 4.9 Business; Status as Air Carrier. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 4.10 ERISA Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 4.11 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 4.12 Purpose of Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 4.13 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 4.14 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE V - COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 5.1 Performance of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 5.2 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 5.3 Maintenance of Existence, Licenses and
Franchises; Compliance With Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 5.4 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 5.5 Maintenance of Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 5.6 Inspection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 5.7 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 5.8 Appraisals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 5.9 Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 5.10 Reporting Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 5.11 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 5.12 Restrictions on Sale-Leaseback
Transactions; Pool Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 5.13 Restrictions on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 5.14 Mergers and Dissolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 5.15 Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE VI - EVENTS OF DEFAULT; REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 6.1 Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 6.2 Remedies Upon Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 6.3 Remedies in General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE VII - THE AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 7.1 Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 7.2 Agents' Reliance, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.3 Rights of Agents as Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
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Section 7.4 Bank Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.5 AGENTS' INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.6 Successor Administrative Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 7.7 Successor Auction Administration Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 7.8 Successor Documentation Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 7.9 Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE VIII - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 8.1 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 8.2 Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 8.3 No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 8.4 Costs, Expenses and Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 8.5 INDEMNITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 8.6 Right of Setoff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 8.7 GOVERNING LAW; VENUE; SERVICE OF PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 8.8 Usury Not Intended. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 8.9 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 8.10 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 8.11 Successors and Assigns; Participations. . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 8.12 Independence of Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 8.13 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 8.14 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 8.15 Descriptive Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 8.16 Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 8.17 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SCHEDULES
Location of Lending Office; Notice Information Schedule I
Pool Assets Schedule II
EXHIBITS
Form of Competitive Bid Request Exhibit A-1
Form of Notice of Committed Borrowing Exhibit A-2
Form of Notice to Banks of Competitive
Bid Request Exhibit B
Form of Competitive Bid Exhibit C
Form of Competitive Note Exhibit D-1
Form of Committed Note Exhibit D-2
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TABLE OF CONTENTS
(Continued)
Form of Company Counsel Opinion Exhibit E-1
Form of Agents' Counsel Opinion Exhibit E-2
Form of Administrative Questionnaire Exhibit F
Form of Financial Report Certificate Exhibit G
Form of Assignment and Acceptance Exhibit H
Form of Appraisal Exhibit I
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COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT dated as
of May 6, 1997, among SOUTHWEST AIRLINES CO., a Texas corporation (the
"Company"), the Banks, TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national
banking association, as administrative agent for the Banks (in such capacity,
the "Administrative Agent"), THE CHASE MANHATTAN BANK, a New York banking
corporation, as auction administration agent for the Banks (in such capacity,
the "Auction Administration Agent"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, a national banking association, as documentation agent for the
Banks (in such capacity, the "Documentation Agent"), and NATIONSBANK OF TEXAS,
N.A., a national banking association, as syndication agent for the Banks (in
such capacity, the "Syndication Agent").
The Company has requested the Banks to extend credit to the Company in
order to enable it to borrow on a revolving credit basis on and after the
Effective Date and at any time and from time to time prior to the Termination
Date (each as herein defined) a principal amount not in excess of $475,000,000
at any time outstanding. The Company has also requested the Banks to provide a
procedure pursuant to which the Company may designate that all of the Banks be
invited to bid on an uncommitted basis on borrowings by the Company scheduled
to mature on or prior to the Termination Date. The Banks are willing to extend
such credit to the Company on the terms and conditions herein set forth.
Accordingly, the Company, the Agents, and the Banks agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Adjusted Pre-Tax Income" of any Person means, with respect to any
period, net income before taxes of such Person for such period, but excluding
(i) any gain or loss arising from the sale of capital assets other than capital
assets consisting of Aircraft, (ii) any
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gain or loss arising from any write-up or write-down of assets, (iii) income or
loss of any other Person, substantially all of the assets of which have been
acquired by such Person in any manner, to the extent that such income or loss
was realized by such other Person prior to the date of such acquisition, (iv)
net income or loss of any other Person (other than a Subsidiary) in which such
Person has an ownership interest, (v) the income or loss of any other Person to
which assets of such Person shall have been sold, transferred, or disposed of,
or into which such Person shall have merged, to the extent that such income or
loss arises prior to the date of such transaction, (vi) any gain or loss
arising from the acquisition of any securities of such Person, (vii) gains or
losses reported as extraordinary in accordance with GAAP not previously
excluded in clauses (i) through (vi), and (viii) the cumulative effect of
changes in accounting methods permitted by GAAP during such period.
"Administrative Agent" is defined in the introduction to this
Agreement.
"Administrative Questionnaire" means an Administrative Questionnaire
substantially in the form of Exhibit F hereto, which each Bank shall complete
and provide to the Administrative Agent.
"Affiliate" means a Person that directly, or indirectly through one or
more intermediaries, controls or is controlled by or is under common control
with another Person.
"Agents" means the Administrative Agent, the Auction Administration
Agent, the Documentation Agent and the Syndication Agent.
"Agreed Maximum Rate" means, for any date, the Alternate Base Rate
plus 1% per annum.
"Agreement" means this Competitive Advance and Revolving Credit
Facility Agreement, as the same may be amended, supplemented, or modified from
time to time.
"Aircraft" means, collectively, airframes and aircraft engines now
owned or hereafter acquired by the Company, together with all appliances,
equipment, instruments, and accessories (including radio and radar) from time
to time belonging to, installed in, or appurtenant to such airframes and
aircraft engines; provided, however, the term "Aircraft" shall not include
airframes and engines leased by the Company.
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"Aircraft Rentals" means the operating expense attributable to rental
of aircraft, calculated in accordance with the line item described as such in
the Current Financials.
"Alternate Base Loan" means any Committed Loan with respect to which
the Company shall have selected an interest rate based on the Alternate Base
Rate in accordance with the provisions of Article II.
"Alternate Base Rate" means, for any date, a rate per annum (rounded
upwards, if not already a whole multiple of 1/100 of 1%, to the next higher
1/100 of 1%) equal to the greater of (i) the Prime Rate in effect on such day,
and (ii) the Federal Funds Effective Rate in effect for such day plus 1/2 of
1%. For purposes hereof, the term "Prime Rate" means, as of a particular date,
the prime rate most recently announced by TCB and thereafter entered in the
minutes of TCB's Loan and Discount Committee, automatically fluctuating upward
and downward with and at the time specified in each such announcement without
special notice to the Company or any other Person, which prime rate may not
necessarily represent the lowest or best rate actually charged to a customer.
"Federal Funds Effective Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for the day of such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing selected by it.
Any change in the Alternate Base Rate due to a change in the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Federal Funds Effective Rate. If for any reason the Administrative Agent shall
have determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Federal Funds Effective Rate for any reason,
including, without limitation, the inability of the Administrative Agent to
obtain sufficient quotations or publications in accordance with the terms
hereof, the Alternate Base Rate shall be the Prime Rate until the circumstances
giving rise to such inability no longer exist.
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"Applicable Law" means the Laws of the United States of America
applicable to contracts made or performed in the State of Texas, including,
without limitation, 12 U.S.C. Section 86(a), as amended, and any other statute
of the United States of America now or at any time hereafter prescribing
maximum rates of interest on loans, advances, and extensions of credit, and the
Laws of the State of Texas, including, without limitation, Article 5069-1.04
and 5069-1.07(a), Title ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇ (▇▇▇.
5069-1.04 and Art. 5069-1.07(a), Vernon's Annotated Texas Statutes), as amended
("Article 1.04"), and any other statute of, or any provisions of the
Constitution of, the State of Texas now or at any time hereafter prescribing
maximum rates of interest on loans, advances, and extensions of credit.
"Applicable Lending Office" means, with respect to each Bank, such
Bank's Domestic Lending Office in the case of an Alternate Base Loan or a Fixed
Rate Loan and such Bank's Eurodollar Lending Office in the case of a Eurodollar
Loan.
"Applicable Margin" means, as of any date, in the case of Eurodollar
Loans that are Committed Loans, a percentage per annum determined by reference
to the Public Debt Rating in effect on such date as set forth below:
==============================================================
Applicable Margin for
Public Debt Rating Eurodollar Loans that are
S&P/▇▇▇▇▇'▇ Committed Loans
--------------------------------------------------------------
A/A2 or better .155%
--------------------------------------------------------------
A-/A3 .17%
--------------------------------------------------------------
BBB+/Baa1 .20%
--------------------------------------------------------------
BBB/Baa2 .225%
--------------------------------------------------------------
BBB-/Baa3 .30%
--------------------------------------------------------------
BB+/Ba1 or below .50%
==============================================================
For purposes of determining the Applicable Margin on any date, the Public Debt
Rating shall be determined as set forth in the definition of the term Public
Debt Rating.
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"Appraisal" means a "desk-top" appraisal report substantially in the
form of Exhibit I, which will not include physical inspection of aircraft,
engines or maintenance records and will assume the equipment is half life in
its maintenance cycle, dated the date of delivery thereof to the Banks pursuant
to the terms of this Agreement, by one or more independent appraisal firms of
recognized national standing selected by the Company (such firm to be
reasonably satisfactory, at the time of such Appraisal, to the Administrative
Agent) setting forth the fair market value, as determined in accordance with
the definition of "fair market value" promulgated by the International Society
of Transport Aircraft Trading, as of the date of such appraisal, of each Pool
Asset or a proposed Pool Asset, as the case may be.
"Appraisal Delivery Date" means (a) the Asset Pool Date, (b) each date
of replacement, removal or addition of any Pool Assets, and (c) if no Appraisal
of all of the Pool Assets shall have been provided in any two-year period, at
the end of each such two-year period.
"Appraised Value" means, as of any date of determination, the
aggregate fair market value as of such date of each Pool Asset or proposed Pool
Asset, as the case may be, as provided in the most recently delivered
Appraisal.
"Article 1.04" is defined in the definition of the term Applicable
Law.
"Asset Pool Date" means the earlier of (a) the termination of the Bond
Indenture or (b) February 15, 1998.
"Assignment and Acceptance" is defined in Section 8.11(c).
"Auction Administration Agent " is defined in the introduction to this
Agreement.
"Auditors" means independent certified public accountants of
recognized national standing selected by the Company.
"Banks" means those banks signatory hereto and other banks which from
time to time become party hereto pursuant to the provisions of this Agreement.
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"B of A" means Bank of America National Trust and Savings Association.
"Board" means the Board of Governors of the Federal Reserve System of
the United States.
"Bond Indenture" means the Indenture dated December 1, 1985, between
the Company and TCB, as trustee thereunder.
"Borrowing" means a Competitive Borrowing or a Committed Borrowing.
"Borrowing Date" means the Business Day upon which the proceeds of any
Borrowing are to be made available to the Company.
"Business Day" means a day when the Agents and each Bank's Applicable
Lending Office are open for business, other than a Saturday or Sunday, and if
the applicable Business Day relates to any Eurodollar Loan, a day on which
dealings in dollar deposits are carried on in the Eurodollar Interbank Market
and commercial banks are open for domestic or international business in London,
England, in New York, New York, and in Houston, Texas.
"Chase" means The Chase Manhattan Bank.
"Collateral Coverage Test" means, on any date, the requirement that
the Appraised Value of the Pool Assets on such date shall not be less than an
amount equal to 1.5 times the sum of the total Commitments on such date (or,
after termination of the Commitments, the sum of the aggregate amount of Loans
outstanding).
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, and, if
applicable, amendments hereto, as such amount may be permanently terminated or
reduced from time to time pursuant to Section 2.6, Section 2.13(d) and Section
6.2, and as such amount may be increased or reduced from time to time by
assignment or assumption pursuant to Section 2.13(d) and Section 8.11(c). The
Commitments shall automatically and permanently terminate on the Termination
Date.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans from each of the Banks distributed ratably among the Banks in
accordance with their respective Commitments.
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12
"Committed Loan" means a loan by a Bank to the Company pursuant to
Section 2.1, and shall be either a Eurodollar Loan or an Alternate Base Loan.
"Committed Note" means a promissory note which a Bank may require the
Company to execute in accordance with Section 2.8(b), payable to the order of
such Bank, in substantially the form of Exhibit D-2 hereto, with the blanks
appropriately completed, to evidence the aggregate indebtedness of the Company
to such Bank resulting from the Committed Loans made by such Bank to the
Company, together with all modifications, extensions, renewals, and
rearrangements thereof.
"Communications" is defined in Section 8.2.
"Company" is defined in the introduction to this Agreement.
"Competitive Bid" means an offer by a Bank to make a Competitive Loan
pursuant to Section 2.2.
"Competitive Bid Rate" means, as to any Competitive Bid made by a Bank
pursuant to Section 2.2(b), (i) in the case of a Eurodollar Loan, the Margin
(which will be added to or subtracted from the LIBO Rate), and (ii) in the case
of a Fixed Rate Loan, the fixed rate of interest, in each case, offered by the
Bank making such Competitive Bid.
"Competitive Bid Request" means a request for Competitive Bids made
pursuant to Section 2.2(a) substantially in the form of Exhibit A-1.
"Competitive Borrowing" means a borrowing consisting of a single
Competitive Loan from a Bank or simultaneous Competitive Loans from one or more
of the Banks, in each case, whose Competitive Bid as all or as a part of such
Borrowing, as the case may be, has been accepted by the Company under the
bidding procedure described in Section 2.2.
"Competitive Loan" means a loan from a Bank to the Company pursuant to
the bidding procedure described in Section 2.2, and shall be either a
Eurodollar Loan or a Fixed Rate Loan.
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13
"Competitive Note" means a promissory note which a Bank may require
the Company to execute in accordance with Section 2.8(b), payable to the order
of such Bank, in substantially the form of Exhibit D-1 hereto, with the blanks
appropriately completed, to evidence the aggregate indebtedness of the Company
to such Bank resulting from the Competitive Loans made by such Bank to the
Company, together with all modifications, extensions, renewals, and
rearrangements thereof.
"Competitive Reduction" is defined in Section 2.1.
"Consolidated Long-Term Debt" means, as of any date, all consolidated
Debt of the Company and its Subsidiaries which is classified as "long term" in
accordance with GAAP, together with the aggregate of all portions of
Consolidated Long-Term Debt classified as "current maturities" in accordance
with GAAP.
"Consolidated Net Tangible Assets" means the total amount of assets
appearing on the Company's consolidated balance sheet, less, without
duplication, (i) all current liabilities (excluding any thereof which are
extendible or renewable by their terms or replaceable or refundable pursuant to
enforceable commitments at the option of the obligor thereon without requiring
the consent of the obligee to a time more than twelve months after the time as
of which the amount thereof is being computed and excluding current maturities
of Consolidated Long-Term Debt); (ii) all reserves for depreciation and other
asset valuation reserves but excluding any reserves for deferred federal income
Tax arising from accelerated amortization or otherwise; (iii) all goodwill,
trademarks, trade names, patents, unamortized debt discount and expense, and
other like intangible assets carried as an asset on said balance sheet; and
(iv) all appropriate adjustments for minority interests of other Persons
holding common stock in any Subsidiary. Consolidated Net Tangible Assets shall
be determined in accordance with GAAP and as of a date not more than ninety
days prior to the happening of the event for which such determination is being
made.
"Coverage Ratio" means, as of any date, the ratio of (i) for the four
fiscal quarter period for which the Company's annual or quarterly Financial
Statements have been most recently required to have been delivered pursuant to
Section 5.10(a) and Section 5.10(b), the Company's and its Subsidiaries'
consolidated Adjusted Pre-Tax Income, plus Aircraft Rentals, plus consolidated
Net Interest Expense, depreciation, and amortization, and minus
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cash dividends paid by the Company, to (ii) current maturities of Consolidated
Long-Term Debt, consolidated Net Interest Expense, and Aircraft Rentals paid
within such four-quarter period.
"Current Financials" means the Financial Statements of the Company and
its Subsidiaries for the fiscal year ended December 31, 1996.
"Debt" means, without duplication, (a) any indebtedness for borrowed
money or incurred in connection with the acquisition or construction of any
Property, (b) any obligation under any lease of any Property entered into after
the date of this Agreement which is required under GAAP to be capitalized on
the lessee's balance sheet, and (c) any direct or indirect guarantee or
assumption of indebtedness or obligations described in clause (a) or (b),
including without limitation any agreement to provide funds to or otherwise
assure the ability of an obligor to repay indebtedness or meet its obligations.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
transfer or conveyance, suspension of payments, or similar Laws from time to
time in effect affecting the Rights of creditors generally.
"Default" means the occurrence of any event which with the giving of
notice or the passage of time or both would become an Event of Default.
"Documentation Agent" is defined in the introduction to this
Agreement.
"dollars" and the symbol "$" mean the lawful currency of the United
States of America.
"Domestic Lending Office" means, with respect to any Bank, the office
of such Bank specified as its "Domestic Lending Office" on Schedule I to this
Agreement or such other office of such Bank as such Bank may from time to time
specify to the Company, the Administrative Agent and the Auction Administration
Agent.
"Effective Date" means the date on which the conditions set forth in
Section 3.1 are first met.
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15
"Eligible Assignee" means (i) a commercial bank organized under the
Laws of the United States, or any state thereof, and having total assets in
excess of $1,000,000,000; (ii) a commercial bank organized under the Laws of
France, Germany, the Netherlands or the United Kingdom, or under the Laws of a
political subdivision of any such country, and having total assets in excess of
$1,000,000,000; provided that such bank is acting through a branch or agency
located in such country or the United States; and (iii) a commercial bank
organized under the Laws of any other country which is a member of the OECD, or
under the Laws of a political subdivision of any such country, and having total
assets in excess of $1,000,000,000; provided that such bank is acting through a
branch or agency located in the United States.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"Eurocurrency Liabilities" is defined in Regulation D.
"Eurodollar Interbank Market" means the London eurodollar interbank
market.
"Eurodollar Lending Office" means, with respect to each Bank, the
branches or affiliates of such Bank which such Bank has designated on Schedule
I as its "Eurodollar Lending Office" or may hereafter designate from time to
time as its "Eurodollar Lending Office" by notice to the Company, the
Administrative Agent and the Auction Administration Agent.
"Eurodollar Loan" means any loan with respect to which the Company
shall have selected an interest rate based on the LIBO Rate in accordance with
the provisions of Article II.
"Event of Default" means any of the events described in Article VI,
provided there has been satisfied any requirement in connection therewith for
the giving of notice, lapse of time, or happening of any further condition,
event, or act.
"Execution Date" means the date of execution and delivery of the
Agreement by all of the parties hereto.
"Facility Fee" is defined in Section 2.5.
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"Facility Fee Percentage" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such date
as set forth below:
================================================================================
Public Debt Rating
S&P/Moody's Percentage
--------------------------------------------------------------------------------
A/A2 or better .07%
--------------------------------------------------------------------------------
A-/A3 .08%
--------------------------------------------------------------------------------
BBB+/Baa1 .10%
--------------------------------------------------------------------------------
BBB/Baa2 .125%
--------------------------------------------------------------------------------
BBB-/Baa3 .15%
--------------------------------------------------------------------------------
BB+/Ba1 or below .25%
================================================================================
For purposes of determining the Facility Fee Percentage on any date, the Public
Debt Rating shall be determined as set forth in the definition of the term
Public Debt Rating.
"Federal Funds Effective Rate" is defined in the definition of the
term Alternate Base Rate.
"Financial Report Certificate" means a certificate substantially in
the form of Exhibit G.
"Financial Statements" means balance sheets, income and loss
statements, statements of stockholders' equity, and statements of cash flow
prepared in accordance with GAAP and in comparative form to the corresponding
period of the preceding fiscal year.
"Fixed Rate Loan" means any Competitive Loan made by a Bank pursuant
to Section 2.2 based upon an actual percentage rate per annum offered by such
Bank, expressed as a decimal (to no more than four decimal places), and
accepted by the Company.
"GAAP" means generally accepted accounting principles of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and the Financial Accounting Standards Board which are applicable
as of the date in question for the purpose of the definition of "Financial
Statements."
"Highest Lawful Rate" means at the particular time in question the
maximum rate of interest which, under Applicable Law, the Banks are then
permitted to charge the Company on the Obligation. If the maximum rate of
interest which, under Applicable Law, the Banks are
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permitted to charge the Company on the Obligation shall change after the date
hereof, the Highest Lawful Rate shall be automatically increased or decreased,
as the case may be, as of the effective time of such change without notice to
the Company. For purposes of determining the Highest Lawful Rate under
Applicable Law, the applicable rate ceiling shall be (i) the indicated rate
ceiling described in and computed in accordance with the provisions of Section
(a)(1) of Article 1.04; or (ii) provided notice is given as required in Section
(h)(1) of Article 1.04, either the annualized ceiling or quarterly ceiling
computed pursuant to Section (d) of Article 1.04; provided, however, that at
any time such ceiling shall be less than 18% per annum or more than 24% per
annum, the provisions of Section (b)(1) and (2) of Article 1.04 shall control
for purposes of such determination, as applicable.
"Interest Payment Date" means (i) with respect to any Alternate Base
Loan, each Quarterly Payment Date, or if earlier the Termination Date or the
date of prepayment of such Loan or conversion of such Loan to a Eurodollar
Loan, (ii) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable thereto and, in addition in the case of a Eurodollar Loan
with an Interest Period longer than three months each day that would have been
the Interest Payment Date for such Loan had successive Interest Periods of
three months been applicable to such Loan, and (iii) in the case of a Fixed
Rate Loan, the last day of the Interest Period applicable thereto and, in the
case of a Fixed Rate Loan with an Interest Period of more than 90 days, on the
numerically corresponding day which occurs during such Interest Period every
three months from the first day of such Interest Period (or, if there is no
such corresponding day in any such month, the last day of such month).
"Interest Period" means:
(i) as to any Eurodollar Loan, the period commencing on the date of such
Loan and ending on the numerically corresponding day (or if there is no
corresponding day, the last day) in the calendar month that is one, two, three,
six, nine, or twelve months thereafter, as the Company may elect; and
(ii) as to any Fixed Rate Loan, the period commencing on the date of such
Loan and ending on the date specified in the Competitive Bid in which the offer
to make the Fixed Rate Loan was extended;
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provided, however, that each such period shall have a duration of not less than
seven calendar days nor more than 360 calendar days;
provided, further, that (x) if any Interest Period would end on a day which
shall not be a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, with respect to Eurodollar Loans only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day, and (y)
no Interest Period may be selected that ends later than the Termination Date.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"Laws" means all applicable statutes, laws, treaties, ordinances,
rules, regulations, orders, writs, injunctions, decrees, judgments, or opinions
of any Tribunal.
"LIBO Rate" means, for any Eurodollar Loan for any Interest Period
therefor, the rate (rounded upwards, if not already a whole multiple of 1/100
of 1%, to the next higher 1/100 of 1%) equal to the annual rate of interest
shown on the Dow ▇▇▇▇▇ Telerate Screen (Page 3750) for a period equal to such
Interest Period or, if the Dow ▇▇▇▇▇ Telerate Screen is not available, the
annual rate of interest at which dollar deposits approximately equal in
principal amount to TCB's portion of the Committed Borrowing of which such
Eurodollar Loan forms a part (or, in the case of a Competitive Loan, a
principal amount which would have been TCB's portion of the Committed Borrowing
of which such Eurodollar Loan would have formed a part had such Competitive
Borrowing been a Committed Borrowing) and with a maturity equal to the
applicable Interest Period are offered in immediately available funds to the
principal office of TCB in London, England (or if TCB does not at the time any
such determination is made maintain an office in London, England, the principal
office of any Affiliate of TCB in London, England), in the Eurodollar Interbank
Market, at 11:00 a.m., London time (or as soon thereafter as practicable), two
Business Days before the first day of such Interest Period. The LIBO Rate for
the Interest Period for each Eurodollar Loan comprising part of the same
Borrowing shall be determined by the Administrative Agent.
"Lien" means any mortgage, lien, pledge, adverse claim, charge,
security interest or other encumbrance in or on, or any interest or title of
any vendor, lessor, lender or other secured
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party to or of any Person under any conditional sale or other title retention
agreement or lease with respect to, any Property or asset of such Person.
"Litigation" means any action conducted, pending, or threatened by or
before any Tribunal.
"Loan" means a Competitive Loan, a Committed Loan, a Eurodollar Loan,
a Fixed Rate Loan, or an Alternate Base Loan.
"Loan Papers" means (i) this Agreement, certificates delivered
pursuant to this Agreement, and exhibits and schedules hereto, (ii) any notes,
security documents, guaranties, and other agreements in favor of the Agents and
Banks, or any or some of them, ever delivered in connection with this
Agreement, and (iii) all renewals, extensions, or restatements of, or
amendments or supplements to, any of the foregoing.
"Majority Banks" means at any time (i) the Majority Committed Banks
and (ii) Banks holding at least 66-2/3% of the then aggregate unpaid principal
amount of the Competitive Loans.
"Majority Committed Banks" means at any time Banks holding at least
66-2/3% of the then aggregate unpaid principal amount of the Committed Loans or
if no Committed Loans are outstanding, Banks having at least 66-2/3% of the
available Commitments (determined without considering the effect of any
Competitive Reduction).
"Margin" means, as to any Competitive Bid made by a Bank relating to a
Eurodollar Loan, the margin (expressed as a percentage rate per annum in the
form of a decimal to no more than four decimal places) to be added to or
subtracted from the LIBO Rate for any such Loan in order to determine the
interest rate acceptable to such Bank with respect to such Eurodollar Loan.
"Margin Stock" means "margin stock" within the meaning of Regulations
G, T, U, or X of the Board.
"Material Adverse Change" or "Material Adverse Effect" means an act,
event or circumstance which materially and adversely affects the business,
financial condition or results of operations of the Company and its
Subsidiaries on a consolidated basis or the ability of the Company to perform
its obligations under this Agreement or any Loan Paper.
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"Material Subsidiary" means, at any time, any Subsidiary of the
Company having at such time either (i) total assets, as of the last day of the
preceding fiscal quarter, having a net book value greater than or equal to 10%
of the total assets of the Company and all of its Subsidiaries on a
consolidated basis or (ii) Adjusted Pre-Tax Income, as of the last day of the
preceding fiscal quarter, greater than or equal to 10% of the total Adjusted
Pre-Tax Income of the Company and all of its Subsidiaries on a consolidated
basis.
"Moody's" means ▇▇▇▇▇'▇ Investor Service, Inc.
"NationsBank" means NationsBank of Texas, N.A.
"Net Interest Expense" means interest expense minus interest income,
excluding in either case capitalized interest, but including payments in the
nature of interest under capital leases if and to the extent characterized as
such in accordance with GAAP.
"Note" means a Competitive Note or a Committed Note.
"Notice of Committed Borrowing" is defined in Section 2.3.
"Obligation" means all present and future indebtedness, obligations,
and liabilities, and all renewals, extensions, and modifications thereof, owed
to the Agents and Banks, or any or some of them, by the Company, arising
pursuant to any Loan Paper, together with all interest thereon and costs,
expenses, and reasonable attorneys' fees incurred in the enforcement or
collection thereof.
"OECD" means the Organization for Economic Cooperation and Development
as constituted on the date hereof (excluding Mexico, Poland and the Czech
Republic).
"Officer's Certificate" means a certificate signed in the name of the
Company by either its Chairman, one of its Vice Chairmen, its President, one of
its Vice Presidents, its Treasurer, or its Assistant Treasurer, in each case
without personal liability.
"Original Termination Date" means May 6, 2002.
"Permitted Liens" means: (a) Liens for taxes, assessments and
governmental charges or levies which either are not yet due and payable or are
being contested in good faith by appropriate
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21
proceedings and for which adequate reserves are established in accordance with
GAAP; (b) Liens securing judgments, but only to the extent, for an amount and
for a period not resulting in an Event of Default under Section 6.1(d); (c)
Liens arising under this Agreement; (d) Liens constituting normal operational
usage of the affected Property, including charter, third party maintenance,
leasing, pooling or interchange thereof; and (e) Liens imposed by law such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens and other
similar Liens arising in the ordinary course of business securing obligations
that (i) are not overdue for a period of more than 30 days, provided that no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced with respect thereto, or (ii) are being contested in good faith
and for which adequate reserves are established in accordance with GAAP.
"Person" means and includes an individual, partnership, joint venture,
corporation, trust, limited liability company or other entity, Tribunal,
unincorporated organization, or government, or any department, agency, or
political subdivision thereof.
"Plan" means any plan defined in Section 4021(a) of ERISA in respect
of which the Company is an "employer" or a "substantial employer" as such terms
are defined in ERISA.
"Pool Assets" means assets of the Company listed on Schedule II (which
Schedule shall be prepared by the Company, shall be reasonably satisfactory to
the Majority Banks, and shall be delivered to the Administrative Agent prior to
the Asset Pool Date), to the extent modified pursuant to Section 5.12(b) and
shall include only Stage 3 Equipment owned legally by the Company.
"Prime Rate" is defined in the definition of the term Alternate Base
Rate.
"Principal Office" of the Administrative Agent means ▇▇▇▇ ▇▇▇▇▇▇ ▇▇.,
9th Floor, MS46, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or such other office as the
Administrative Agent may hereafter designate from time to time as its
"Principal Office" by notice to the Company, the Banks and the Auction
Administration Agent.
"Property" means all types of real, personal, tangible, intangible, or
mixed property.
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"Public Debt Rating" means, as of any date, the rating that has been
most recently announced by S&P and Moody's for that class of non-credit
enhanced, senior unsecured debt with an original term of longer than one year
issued by the Company which has the lowest rating of all classes of non-credit
enhanced, senior unsecured debt with an original term of longer than one year
issued by the Company. For purposes of the foregoing, (a) if only one of S&P
and Moody's shall have in effect a Public Debt Rating, the Applicable Margin
and the Facility Fee Percentage shall be determined by reference to the
available rating; (b) if the ratings established by S&P and Moody's shall fall
within different levels, the Applicable Margin and the Facility Fee Percentage
shall be based upon the higher rating, except that if the difference is two or
more levels, the Applicable Margin and Facility Fee Percentage shall be based
on the rating that is one level below the higher rating; (c) if any rating
established by S&P or Moody's shall be changed, such change shall be effective
as of the date on which such change is first announced publicly by the rating
agency making such change; (d) if S&P or Moody's shall change the basis on
which ratings are established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer to the then
equivalent rating by S&P or Moody's, as the case may be; (e) if neither S&P nor
Moody's shall have in effect a Public Debt Rating but at least one of S&P and
Moody's has in effect a rating for any class of senior secured debt with an
original term of longer than one year issued by the Company, the Applicable
Margin and Facility Fee Percentage shall be determined by reference to a rating
that is two levels lower than the rating that has been most recently announced
by S&P and Moody's for such class of debt; and (f) if neither S&P nor Moody's
shall have in effect either a Public Debt Rating or a rating for any class of
senior secured debt with an original term of longer than one year issued by the
Company, the Applicable Margin and the Facility Fee Percentage shall be set in
accordance with the lowest level rating and highest percentage rate set forth
in the respective tables in the definitions of "Applicable Margin" and
"Facility Fee Percentage", as the case may be.
"Quarterly Payment Date" means the 15th day of each March, June,
September and December of each year, the first of which shall be the first such
day after the Effective Date.
"Register" is defined in Section 8.11(e).
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"Regulation D" means Regulation D of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
"Regulatory Change" means, with respect to any Bank, (a) any adoption
or change after the Execution Date of or in United States federal, state or
foreign laws, rules, regulations (including Regulation D) or guidelines
applying to a class of banks including such Bank, (b) the adoption or making
after the Execution Date of any interpretations, directives or requests
applying to a class of banks including such Bank of or under any United States
federal, state or foreign laws, rules, regulations or guidelines (whether or
not having the force of law) by any Tribunal, monetary authority, central bank,
or comparable agency charged with the interpretation or administration thereof,
or (c) any change in the interpretation or administration of any United States
federal, state or foreign laws, rules, regulations or guidelines applying to a
class of banks including such Bank by any Tribunal, monetary authority, central
bank, or comparable agency charged with the interpretation or administration
thereof.
"Reserve Percentage" of any Bank for the Interest Period for any
Eurodollar Loan means the reserve percentage applicable during such Interest
Period under regulations issued from time to time by the Board (or if more than
one such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any such
percentage shall be so applicable) for determining the maximum reserve
requirement (including, without limitation, any marginal reserve requirement)
for such Bank with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"Rights" means rights, remedies, powers, and privileges.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Sale-Leaseback Debt" means, as to any particular lease entered into
in a Sale-Leaseback Transaction, at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be paid under such
lease during the remaining term thereof, discounted from the respective due
dates thereof to such date at the rate per annum which would then be used to
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determine the lease classification under GAAP. The net amount of rent required
to be paid under any such lease for any such period shall be the aggregate
amount of the rent payable by the lessee with respect to such period after
excluding amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water rates, and similar charges. The term
"Sale-Leaseback Debt" shall exclude any part thereof representing any
extension, renewal, or replacement (or successive extensions, renewals, or
replacements) of Debt secured by any Lien existing on the date hereof or any
Lien referred to in clauses (l) through (8) inclusive of Section 5.13(a),
provided that the Sale-Leaseback Transaction resulting in such Sale-Leaseback
Debt shall be limited to all or a part of the Property (plus improvements and
construction on such Property) which was subject to the Lien securing the Debt
so extended, renewed, or replaced.
"Sale-Leaseback Transaction" means any sale by the Company or any of
its Subsidiaries to any Person (other than the Company or another of its
Subsidiaries) of any Property owned by the Company or such Subsidiary, which
sale occurs more than 270 days after the later of the acquisition, completion
of construction, or commencement of commercial operation of such Property by
the Company or such Subsidiary, if, as part of the same transaction or series
of transactions, the Company or any of its Subsidiaries shall lease as lessee
the same Property or other substantially equivalent Property which it intends
to use for substantially the same purposes.
"Stage 3 Airframes" and "Stage 3 Engines" mean airframes or engines,
respectively, owned by the Company and qualifying as Stage 3 airplanes, as set
forth in Federal Aviation Regulation 36.1(f)(6), 14 C.F.R. Section 36.1 (f)(6)
or any successor regulation, as amended; and "Stage 3 Engines" also include
spare engines which are suitable for use on Stage 3 Airframes and are being
maintained according to the Company's normal and customary standards.
"Stage 3 Equipment" means Stage 3 Airframes and not less than two nor
more than four Stage 3 Engines per Stage 3 Airframe.
"Stated Rate" is defined in Section 8.8.
"Subsidiary" of a Person means any entity of which an aggregate of
more than 50% (in number of votes) of the stock (or equivalent interests) is
owned of record or beneficially, directly or indirectly, by such Person.
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"Syndication Agent" is defined in the introduction to this Agreement.
"Taxes" means all taxes, assessments, fees, or other similar charges
at any time imposed by any Laws or Tribunal.
"TCB" means Texas Commerce Bank National Association.
"Termination Date" means, at any time, the Original Termination Date
or the earlier date of termination in whole of the Total Commitment pursuant to
Section 2.6 or Section 6.2.
"Total Commitment" means at any time the aggregate amount of the
Banks' Commitments, as in effect at such time.
"Tribunal" means any municipal, state, commonwealth, federal, foreign,
territorial, or other court, governmental body, subdivision, agency,
department, commission, board, bureau, or instrumentality.
"Type" refers to the distinction between Committed Loans that are
Alternate Base Loans and Committed Loans that are Eurodollar Loans.
"United States" and "U.S." each means United States of America.
Section 2 Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding."
ARTICLE I
LOANS
Section 2.1 Commitments. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each
Bank, severally and not jointly, agrees to make revolving credit loans to the
Company, at any time and from time to time on and after the Effective Date and
until the earlier
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of the Termination Date and the termination of the Commitment of such Bank in
accordance with the terms hereof. Notwithstanding the foregoing, (a) the
aggregate principal amount at any time outstanding of all Committed Loans of a
Bank shall not exceed such Bank's Commitment and (b) the Total Commitment shall
be deemed used from time to time to the extent of the aggregate principal
amount of the Competitive Loans then outstanding, and such deemed use of the
Total Commitment shall be applied to the Banks ratably according to their
respective Commitments (such deemed use of the Total Commitment being a
"Competitive Reduction"), subject, however, to the conditions that (i) at no
time shall (A) the sum of (x) the outstanding aggregate principal amount of all
Committed Loans made by all Banks plus (y) the outstanding aggregate principal
amount of all Competitive Loans made by all Banks exceed (B) the Total
Commitment and (ii) at all times the outstanding aggregate principal amount of
all Committed Loans made by a Bank shall equal the product of (x) the
percentage which its Commitment represents of the Total Commitment times (y)
the outstanding aggregate principal amount of all Committed Loans obligated to
have been made by all Banks.
Within the foregoing limits, the Company may borrow, repay, prepay,
and reborrow hereunder, on and after the Effective Date and prior to the
Termination Date, subject to the terms, provisions, and limitations set forth
herein.
Section 2.2 Competitive Bid Procedure.
(a) In order to request Competitive Bids, the Company
shall hand deliver or telecopy to the Administrative Agent and the
Auction Administration Agent a duly completed Competitive Bid Request,
to be received by the Administrative Agent and the Auction
Administration Agent (i) in the case of Eurodollar Loans, not later
than 9:00 a.m., Houston, Texas time, four Business Days before the
Borrowing Date specified for a proposed Competitive Borrowing and (ii)
in the case of Fixed Rate Loans, not later than 9:00 a.m., Houston,
Texas time, one Business Day before the Borrowing Date specified for a
proposed Competitive Borrowing. No Alternate Base Loan shall be
requested in, or, except pursuant to Section 2.14, made pursuant to, a
Competitive Bid Request. A Competitive Bid Request that does not
conform substantially to the format of Exhibit A-1 may be rejected at
the Auction Administration Agent's sole discretion, and the Auction
Administration Agent
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shall promptly notify the Company of such rejection by telecopier.
Each Competitive Bid Request shall in each case refer to this
Agreement and specify (x) whether the Competitive Loans then being
requested are to be Eurodollar Loans or Fixed Rate Loans, (y) the
Borrowing Date of such Competitive Loans (which shall be a Business
Day) and the aggregate principal amount thereof (which shall not be
less than $10,000,000 or greater than the unused Total Commitment on
such Borrowing Date and shall be an integral multiple of $1,000,000),
and (z) the Interest Period with respect thereto (which may not end
after the Termination Date). Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the Auction
Administration Agent shall invite by telecopier (substantially in the
form set forth in Exhibit B hereto) the Banks to bid, on the terms and
conditions of this Agreement, to make Competitive Loans pursuant to
such Competitive Bid Request.
(b) Each Bank may, in its sole discretion, make one or
more Competitive Bids to the Company responsive to each Competitive
Bid Request. Each Competitive Bid by a Bank must be received by the
Auction Administration Agent via telecopier, substantially in the form
of Exhibit C hereto, (i) in the case of Eurodollar Loans, not later
than 9:00 a.m., Houston, Texas time, three Business Days before the
Borrowing Date specified for a proposed Competitive Borrowing and (ii)
in the case of Fixed Rate Loans, not later than 8:30 a.m., Houston,
Texas time, on the day of a proposed Competitive Borrowing.
Competitive Bids that do not conform substantially to the format of
Exhibit C may be rejected by the Auction Administration Agent after
conferring with, and upon the instruction of, the Company, and the
Auction Administration Agent shall notify the non-conforming Bank of
such rejection as soon as practicable. Each Competitive Bid shall
refer to this Agreement and (x) specify the principal amount (which
shall be in a minimum principal amount of $5,000,000 and in an
integral multiple of $1,000,000 and which may equal the entire
principal amount of the Competitive Borrowing requested by the
Company) of the Competitive Loan the Bank is willing to make to the
Company, (y) specify the Competitive Bid Rate(s) at which the Bank is
prepared to make the Competitive Loan and (z) confirm the Interest
Period with respect thereto specified by the Company in its
Competitive Bid Request. A Competitive Bid submitted by a Bank
pursuant to this paragraph (b) shall be irrevocable.
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(c) The Auction Administration Agent shall promptly
notify the Company by telecopier of all the Competitive Bids made, the
Competitive Bid Rate and the principal amount of each Competitive Loan
in respect of which a Competitive Bid was made and the identity of the
Bank that made each bid. The Auction Administration Agent shall send
a copy of all Competitive Bids to the Company for its records as soon
as practicable after completion of the bidding process set forth in
this Section 2.2.
(d) The Company may in its sole and absolute
discretion, subject only to the provisions of this Section 2.2(d),
accept or reject any or all of the Competitive Bids referred to in
paragraph (c) above; provided, however, that the aggregate amount of
the Competitive Bids so accepted by the Company may not exceed the
principal amount of the Competitive Borrowing requested by the
Company. The Company shall notify the Auction Administration Agent by
telecopier whether and to what extent it has decided to accept or
reject any or all of the bids referred to in paragraph (c) above, (i)
in the case of Eurodollar Loans, not later than 11:00 a.m., Houston,
Texas time, three Business Days before the Borrowing Date specified
for a proposed Competitive Borrowing and (ii) in the case of Fixed
Rate Loans, not later than 9:30 a.m., Houston, Texas time, on the day
specified for a proposed Competitive Borrowing; provided, however,
that (w) the failure by the Company to give such notice shall be
deemed to be a rejection of all the bids referred to in paragraph (c)
above, (x) the Company shall not accept a bid made at a particular
Competitive Bid Rate if the Company has decided to reject a bid made
at a lower Competitive Bid Rate, (y) if the Company shall accept bids
made at a particular Competitive Bid Rate but shall be restricted by
other conditions hereof from borrowing the full principal amount of
Competitive Loans in respect of which bids at such Competitive Bid
Rate have been made or shall not require the full amount offered
thereby, then the Company shall accept a pro rata portion of each bid
made at such Competitive Bid Rate based as nearly as possible on the
respective principal amounts of Competitive Loans for which such bids
were made and (z) no bid shall be accepted for a Competitive Loan
unless such Competitive Loan is in a
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minimum principal amount of $5,000,000 and an integral multiple of
$1,000,000. Notwithstanding the foregoing clause (z), if it is
necessary for the Company to accept a pro rata allocation of the bids
made in response to a Competitive Bid Request (whether pursuant to the
events specified in clause (y) above or otherwise) and the available
principal amount of Competitive Loans to be allocated among the Banks
is not sufficient to enable Competitive Loans to be allocated to each
Bank in a minimum principal amount of $5,000,000 and in integral
multiples of $1,000,000, then the Company shall select the Banks to be
allocated such Competitive Loans and shall round allocations up or
down to the next higher or lower multiple of $500,000 as it shall deem
appropriate. A notice given by the Company pursuant to this paragraph
(d) shall be irrevocable.
(e) The Auction Administration Agent shall promptly
notify each bidding Bank whether or not its Competitive Bid has been
accepted (and if so, in what amount and at what Competitive Bid Rate)
by telecopier, and each successful bidder will thereupon become bound,
subject to the other applicable conditions hereof, to make the
Competitive Loan in respect of which its bid has been accepted. After
completing the notifications referred to in the immediately preceding
sentence, the Auction Administration Agent shall (i) notify the
Administrative Agent of each Competitive Bid that has been accepted,
the amount thereof and the Competitive Bid Rate therefor and (ii)
notify each Bank of the aggregate principal amount of all Competitive
Bids accepted.
(f) Upon receipt from the Administrative Agent of the
LIBO Rate applicable to any Eurodollar Loan to be made by any Bank
pursuant to a Competitive Bid that has been accepted by the Company
pursuant to Section 2.2(d), the Auction Administration Agent shall
notify such Bank of (i) the applicable LIBO Rate and (ii) the sum of
the applicable LIBO Rate plus the Margin bid by such Bank.
(g) No Competitive Bid Request shall be made within
five Business Days of the date of any other Competitive Bid Request,
unless the Company and the Auction Administration Agent shall mutually
agree otherwise.
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(h) If the Auction Administration Agent shall at any
time have a Commitment hereunder and shall elect to submit a
Competitive Bid in its capacity as a Bank, it shall submit such bid
directly to the Company one quarter of an hour earlier than the latest
time at which the other Banks are required to submit their bids to the
Auction Administration Agent pursuant to paragraph (b) above.
(i) All notices required by this Section 2.2 shall be
made in accordance with Section 8.2.
Section 2.3 Committed Borrowing Procedure. In order to effect
a Committed Borrowing, the Company shall hand deliver or telecopy to the
Administrative Agent a duly completed request for Committed Borrowing,
substantially in the form of Exhibit A-2 hereto (a "Notice of Committed
Borrowing"), (i) in the case of Eurodollar Loans, not later than 10:00 a.m.,
Houston, Texas time, three Business Days before the Borrowing Date specified
for a proposed Committed Borrowing, and (ii) in the case of Alternate Base
Loans, not later than 10:00 a.m., Houston, Texas time, on the Business Day
which is the Borrowing Date specified for a proposed Committed Borrowing. No
Fixed Rate Loan shall be requested or made pursuant to a Notice of Committed
Borrowing. Such notice shall be irrevocable and shall in each case refer to
this Agreement and specify (x) whether the Loans then being requested are to be
Eurodollar Loans, or Alternate Base Loans, (y) the Borrowing Date of such Loans
(which shall be a Business Day) and the aggregate amount thereof (which shall
not be less than $10,000,000 and shall be an integral multiple of $1,000,000)
and (z) in the case of a Eurodollar Loan, the Interest Period with respect
thereto (which shall not end later than the Termination Date). If no Interest
Period with respect to any Eurodollar Loan is specified in any such Notice of
Committed Borrowing, then the Company shall be deemed to have selected an
Interest Period of one month's duration. Promptly, and in any event on the
same day the Administrative Agent receives a Notice of Committed Borrowing
pursuant to this Section 2.3 if such notice is received by 10:00 a.m., Houston,
Texas time on a Business Day and otherwise on the next succeeding Business Day,
the Administrative Agent shall advise the other Banks of such Notice of
Committed Borrowing and of each Bank's portion of the requested Committed
Borrowing by telecopier. Each Committed Borrowing shall consist of Loans of
the same Type made on the same day and having the same Interest Period.
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Section 2.4 Refinancings; Conversions.
(a) The Company may refinance all or any part of any
Loan with a Loan of the same or a different type made pursuant to
Section 2.2 or Section 2.3, subject to the conditions and limitations
set forth herein and elsewhere in this Agreement, including, without
limitation, refinancings of Competitive Loans with Committed Loans and
Committed Loans with Competitive Loans. Any Loan or part thereof so
refinanced shall be deemed to be repaid in accordance with Section
2.18 with the proceeds of a new Borrowing hereunder and the proceeds
of the new Loan, to the extent they do not exceed the principal amount
of the Loan being refinanced, shall not be paid by the Banks to the
Administrative Agent or by the Administrative Agent to the Company
pursuant to Section 2.7(c); provided, however, that (i) if the
principal amount extended by a Bank in a refinancing is greater than
the principal amount extended by such Bank in the Borrowing being
refinanced, then such Bank shall pay such difference to the
Administrative Agent for distribution to the Banks described in (ii)
below, (ii) if the principal amount extended by a Bank in the
Borrowing being refinanced is greater than the principal amount being
extended by such Bank in the refinancing, the Administrative Agent
shall return the difference to such Bank out of amounts received
pursuant to (i) above, (iii) to the extent any Bank fails to pay the
Administrative Agent amounts due from it pursuant to (i) above, any
Loan or portion thereof being refinanced shall not be deemed repaid in
accordance with Section 2.18 to the extent of such failure and the
Company shall pay such amount to the Administrative Agent pursuant to
Section 2.18 and (iv) to the extent the Company fails to pay to the
Administrative Agent any amounts due in accordance with Section 2.18
as a result of the failure of a Bank to pay the Administrative Agent
any amounts due as described in (iii) above, the portion of any
refinanced Loan deemed not repaid shall be deemed to be outstanding
solely to the Bank which has failed to pay the Administrative Agent
amounts due from it pursuant to (i) above to the full extent of such
Bank's portion of such refinanced Loan.
(b) Subject to the conditions and limitations set
forth in this Agreement, the Company shall have the right from time to
time to convert all or part of one Type of Committed Loan
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into another Type of Committed Loan or to continue all or a part of
any Committed Loan that is a Eurodollar Loan from one Interest Period
to another Interest Period by giving the Administrative Agent written
notice (by means of a Notice of Committed Borrowing) (i) in the case
of Eurodollar Loans, not later than 10:00 a.m., Houston, Texas time,
three Business Days before the date specified for such proposed
conversion or continuation, and (ii) in the case of Alternate Base
Loans, not later than 10:00 a.m., Houston, Texas time, on the Business
Day which is the date specified for such proposed conversion or
continuation. Such notice shall specify (A) the proposed date for
conversion or continuation, (B) the amount of the Committed Loan to be
converted or continued, (C) in the case of conversions, the Type of
Committed Loan to be converted into, and (D) in the case of a
continuation of or conversion into a Eurodollar Loan, the duration of
the Interest Period applicable thereto; provided that (1) Eurodollar
Loans may be converted only on the last day of the applicable Interest
Period, (2) except for conversions to Alternate Base Loans, no
conversion shall be made while a Default or Event of Default has
occurred and is continuing and no continuations of any Eurodollar Loan
from one Interest Period to another Interest Period shall be made
while a Default or Event of Default has occurred and is continuing,
unless such conversion or continuation has been approved by Majority
Committed Banks, and (3) each such conversion or continuation shall be
in an amount not less than $10,000,000 and shall be an integral
multiple of $1,000,000. All notices given under this Section shall be
irrevocable. If the Company shall fail to give the Administrative
Agent the notice as specified above for continuation or conversion of
a Eurodollar Loan prior to the end of the Interest Period with respect
thereto, such Eurodollar Loan shall automatically be converted into an
Alternate Base Loan on the last day of the Interest Period for such
Eurodollar Loan.
Section 2.5 Fees. The Company agrees to pay to each Bank,
through the Administrative Agent, on each Quarterly Payment Date and on the
Termination Date, in immediately available funds, a facility fee (a "Facility
Fee") calculated by multiplying the Facility Fee Percentage by the amount of
the average daily Commitment of such Bank, whether used or unused, during the
preceding three-month period (or shorter period commencing with the Effective
Date and/or ending with the Termination Date). All
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Facility Fees shall be computed by the Administrative Agent on the basis of the
actual number of days elapsed in a year of 360 days, and shall be conclusive
and binding for all purposes, absent manifest error. The Facility Fee due to
each Bank shall commence to accrue on the Effective Date and shall cease to
accrue on the earlier of the Termination Date and the termination of the
Commitment of such Bank as provided herein. Notwithstanding the foregoing, in
no event shall any Bank be permitted to receive any compensation hereunder
constituting interest in excess of the Highest Lawful Rate.
Section 2.6 Termination and Reduction of Commitments.
(a) Subject to Section 2.12(b), the Company may
permanently terminate, or from time to time in part permanently
reduce, the Total Commitment, in each case upon at least three
Business Days' prior written notice to the Administrative Agent (who
shall promptly forward a copy thereof to each Bank and the Auction
Administration Agent). Such notice shall specify the date and the
amount of the termination or reduction of the Total Commitment. Each
such partial reduction of the Total Commitment shall be in a minimum
aggregate principal amount of $10,000,000 and in an integral multiple
of $1,000,000.
(b) On the Termination Date the Total Commitment shall
be zero.
(c) Each reduction in the Total Commitment pursuant to
this Section 2.6 shall be made ratably among the Banks in accordance
with their respective Commitments. Simultaneously with any termination
of Commitments pursuant to this Section, the Company shall pay to the
Administrative Agent for the accounts of the Banks the Facility Fees
on the amount of the Total Commitment so terminated, accrued through
the date of such termination.
Section 2.7 Loans.
(a) Each Borrowing made by the Company on any date
shall be (i) in the case of Competitive Loans, in an integral multiple
of $1,000,000 and in a minimum aggregate principal amount of
$5,000,000 and (ii) in the case of Committed Loans, in an integral
multiple of $1,000,000 and in a minimum
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aggregate principal amount of $10,000,000. Competitive Loans shall be
made by the Banks in accordance with Section 2.2(d), and Committed
Loans shall be made by the Banks ratably in accordance with their
respective Commitments on the Borrowing Date of the Committed
Borrowing; provided, however, that the failure of any Bank to make any
Loan shall not in itself relieve any other Bank of its obligation to
lend hereunder.
(b) Each Competitive Loan shall be a Eurodollar Loan
or a Fixed Rate Loan, and each Committed Loan shall be a Eurodollar
Loan or an Alternate Base Loan, as the Company may request subject to
and in accordance with Section 2.2, Section 2.3 or Section 2.4(b), as
applicable. Each Bank may at its option make any Eurodollar Loan by
causing a foreign branch or Affiliate of such Bank to make such Loan;
provided, however, that any exercise of such option shall not affect
the obligation of the Company to repay such Loan in accordance with
the terms of this Agreement. Loans of more than one interest rate
option may be outstanding at the same time; provided, however, that
the Company shall not be entitled to request any Loan which, if made,
would result in an aggregate of more than ten separate Interest
Periods being outstanding hereunder at any one time. For purposes of
the foregoing, Loans having different Interest Periods, regardless of
whether they commence on the same date, shall be considered separate
Loans.
(c) Subject to Section 2.4, each Bank shall make its
portion of each Competitive Borrowing and each Committed Borrowing on
the proposed Borrowing Date thereof by paying the amount required to
the Administrative Agent at the Principal Office in immediately
available funds not later than 12:00 noon, Houston, Texas time, and
the Administrative Agent shall by 2:00 p.m., Houston, Texas time,
credit the amounts so received to the general deposit account of the
Company with the Administrative Agent or, if Loans are not made on
such date because any condition precedent to a Borrowing herein
specified shall not have been met, return the amounts so received to
the respective Banks as soon as practicable; provided, however, if and
to the extent the Administrative Agent fails to return any such
amounts to a Bank on the Borrowing Date for such Borrowing, the
Administrative Agent shall pay interest on such unreturned amounts,
for each day from such Borrowing Date to the date such amounts are
returned to such Bank, at the Federal Funds Effective Rate.
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(d) The outstanding principal amount of each
Competitive Loan shall be due and payable on the last day of the
Interest Period applicable to such Competitive Loan, and the
outstanding principal balance of each Committed Loan shall be due and
payable on the Termination Date.
Section 2.8 Loan Accounts.
(a) The Loans made by each Bank shall be evidenced by
one or more loan accounts or records maintained by such Bank in the
ordinary course of business. Absent manifest error, the loan accounts
or records maintained by the Administrative Agent and each Bank shall
be prima facie evidence of the amount of the Loans made by the Banks
to the Company and the interest and payments thereon. Any failure so
to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Company hereunder to pay any
amount owing with respect to the Loans.
(b) Upon the request of any Bank made through the
Administrative Agent, the Loans made by such Bank may be evidenced by
one or more Notes, instead of or in addition to loan accounts, and
upon any such request the Company shall execute and deliver such Notes
to such Bank. Each such Bank shall, and is hereby authorized by the
Company to, endorse on the schedule attached to the relevant Note held
by such Bank (or on a continuation of such schedule attached to each
such Note and made a part thereof) or in its records relating to such
Note an appropriate notation evidencing the date and amount of each
Competitive Loan or Committed Loan, as applicable, of such Bank, each
payment or prepayment of principal of any Competitive Loan or
Committed Loan, as applicable, and the other information provided for
on such schedule. The failure of any Bank to make such a notation or
any error therein shall not in any manner affect the obligation of the
Company to repay the Competitive Loans or Committed Loans, as
applicable, made by such Bank in accordance with the terms of the
relevant Note.
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Section 2.9 Interest on Loans.
(a) Subject to the provisions of Section 2.10, each
Eurodollar Loan shall bear interest at a rate per annum (computed on
the basis of the actual number of days elapsed over a year of 360
days) equal to the lesser of (i) the Highest Lawful Rate and (ii) the
LIBO Rate for the Interest Period in effect for such Loan (A) plus or
minus, as the case may be, in the case of each Competitive Loan, the
Margin specified by a Bank with respect to such Loan in its
Competitive Bid submitted pursuant to Section 2.2(b) or (B) plus, in
the case of each Committed Loan, the Applicable Margin. Interest on
each Eurodollar Loan shall be payable on each Interest Payment Date
applicable thereto. The applicable LIBO Rate for each Interest Period
shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
(b) Subject to the provisions of Section 2.10, each
Alternate Base Loan shall bear interest at the rate per annum equal to
the lesser of (i) the Highest Lawful Rate and (ii) the Alternate Base
Rate (if the Alternate Base Rate is based on the Prime Rate, computed
on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be; if the Alternate Base Rate is based
on the Federal Funds Effective Rate, computed on the basis of the
actual number of days elapsed over a year of 360 days). Interest on
each Alternate Base Loan shall be payable on each Interest Payment
Date applicable thereto. The applicable Alternate Base Rate shall be
determined by the Administrative Agent, and such determination shall
be conclusive absent manifest error.
(c) Subject to the provisions of Section 2.10, each
Fixed Rate Loan shall bear interest at a rate per annum (computed on
the basis of the actual number of days elapsed over a year of 360
days) equal to the fixed rate of interest offered by the Bank making
such Loan and accepted by the Company pursuant to Section 2.2.
Interest on each Fixed Rate Loan shall be payable on each Interest
Payment Date applicable thereto.
(d) The Company shall pay to the Administrative Agent
for the account of each Bank that has made a Eurodollar Loan to the
Company, so long as such Bank shall be required under
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regulations of the Board to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of
each such Eurodollar Loan of such Bank, from the date of such Loan
until such principal amount is paid in full, at an interest rate per
annum for such number of days during the Interest Period for such Loan
as shall be pertinent equal to the remainder obtained by subtracting
(i) the LIBO Rate for such Interest Period from (ii) the rate obtained
by dividing such LIBO Rate referred to in clause (i) above by that
percentage equal to 100% minus the Reserve Percentage of such Bank for
such Interest Period, payable on the next Interest Payment Date
applicable to such Loan; provided, however, in no event shall any Bank
be permitted to receive interest hereunder in excess of the Highest
Lawful Rate. Such additional interest shall be determined by such
Bank as, if and to the extent incurred, and shall be payable as
aforesaid upon notification thereof by such Bank to the Company
through the Administrative Agent. Each determination by a Bank of
additional interest under this Section 2.9(d) shall be conclusive and
binding for all purposes in the absence of manifest error.
Section 2.10 Interest on Overdue Amounts. If the Company shall
default in the payment of the principal of or interest on any Loan or any other
amount becoming due hereunder, the Company shall on demand from time to time
pay interest, to the extent permitted by Law, on such defaulted amount up to
(but not including) the date of actual payment (after as well as before
judgment) at a rate per annum equal to the lesser of (i) the Highest Lawful
Rate and (ii) the Agreed Maximum Rate (if the Alternate Base Rate is based on
the Prime Rate, computed on the basis of the actual number of days elapsed over
a year of 365 or 366 days, as the case may be; if the Alternate Base Rate is
based on the Federal Funds Effective Rate, computed on the basis of the actual
number of days elapsed over a year of 360 days).
Section 2.11 Alternate Rate of Interest. In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurodollar Loan that is a Committed Loan, the
Administrative Agent shall have determined that dollar deposits in the amount
of the requested principal amount of such Eurodollar Loan are not generally
available in the Eurodollar Interbank Market, or that dollar deposits are not
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generally available in the Eurodollar Interbank Market for the requested
Interest Period, or that the rate at which such dollar deposits are being
offered will not adequately and fairly reflect the cost to any Bank of making
or maintaining such Eurodollar Loan during such Interest Period, or that
reasonable means do not exist for ascertaining the LIBO Rate, the
Administrative Agent shall, as soon as practicable thereafter, give telecopy
notice of such determination to the Company, the Auction Administration Agent,
and the Banks. In the event of any such determination, any request by the
Company for a Eurodollar Loan that is a Committed Loan shall, until the
circumstances giving rise to such notice no longer exist, be deemed to be a
request for an Alternate Base Loan. Each determination by the Administrative
Agent hereunder shall be conclusive absent manifest error.
Section 2.12 Prepayment of Loans.
(a) Prior to the Termination Date, the Company shall
have the right at any time to prepay any Committed Borrowing, in whole
or in part, subject to the requirements of Section 2.15 or Section
2.16 but otherwise without premium or penalty, upon at least five
Business Days prior written notice to the Administrative Agent;
provided, however, that each such partial prepayment shall be in an
integral multiple of $1,000,000 and in a minimum aggregate principal
amount of $5,000,000. Each notice of prepayment shall specify the
prepayment date and the aggregate principal amount of each Borrowing
to be prepaid, shall be irrevocable and shall commit the Company to
prepay such Borrowing by the amount stated therein. The Company shall
not have the right to prepay any Competitive Borrowing.
(b) On the date of any termination or reduction of the
Total Commitment pursuant to Section 2.6(a), the Company shall pay or
prepay so much of the Loans as shall be necessary in order that the
aggregate principal amount of the Loans outstanding will not exceed
the Total Commitment following such termination or reduction. Subject
to the foregoing, any such payment or prepayment shall be applied to
such Borrowing or Borrowings as the Company shall select. All
prepayments under this paragraph shall be subject to Section 2.15 and
Section 2.16.
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(c) All prepayments under this Section 2.12 shall be
accompanied by accrued interest on the principal amount being prepaid
to the date of prepayment.
Section 2.13 Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if
after the date of this Agreement any Regulatory Change (i) shall
change the basis of taxation of payments to any Bank of the principal
of or interest on any Eurodollar Loan or Fixed Rate Loan made by such
Bank or any other fees or amounts payable hereunder (other than (x)
Taxes imposed on or measured by the capital, receipts or franchises of
such Bank or the overall gross or net income of such Bank by the
jurisdiction in which such Bank has its principal office or by any
political subdivision or taxing authority therein (or any Tax which is
enacted or adopted by such jurisdiction, political subdivision, or
taxing authority as a direct substitute for any such Taxes) or (y) any
Tax, assessment, or other governmental charge that would not have been
imposed but for the failure of any Bank to comply with any
certification, information, documentation, or other reporting
requirement), (ii) shall impose, modify, or deem applicable any
reserve, special deposit, or similar requirement with respect to any
Eurodollar Loan against assets of, deposits with or for the account
of, or credit extended by, such Bank under this Agreement (without
duplication of any amounts paid pursuant to Section 2.9(d)), or (iii)
with respect to any Eurodollar Loan, shall impose on such Bank or the
Eurodollar Interbank Market any other condition affecting this
Agreement or any Eurodollar Loan made by such Bank, and the result of
any of the foregoing shall be to materially increase the actual cost
to such Bank of maintaining its Commitment or of making or maintaining
any Eurodollar Loan or Fixed Rate Loan or to materially reduce the
amount of any sum received or receivable by such Bank hereunder
(whether of principal, interest, or otherwise) in respect thereof,
then the Company shall pay to the Administrative Agent for the account
of such Bank, within ten days following delivery to the Company of the
certificate specified in paragraph (c) below by such Bank, such
additional amount or amounts as will reimburse such Bank for such
increase or reduction to such Bank to the extent reasonably allocable
to this Agreement. Notwithstanding the foregoing, in no event shall
any Bank be permitted to receive any payment hereunder constituting
interest in excess of the Highest Lawful Rate.
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(b) If any Bank shall have determined in good faith
that any Regulatory Change regarding capital adequacy or compliance by
any Bank (or its parent or any lending office of such Bank) with any
request or directive regarding capital adequacy (whether or not having
the force of Law) of any Tribunal, monetary authority, central bank,
or comparable agency, has or would have the effect of reducing the
rate of return on such Bank's (or its parent's) capital as a
consequence of its obligations hereunder to a level below that which
such Bank (or its parent) could have achieved but for such Regulatory
Change, or compliance (taking into consideration such Bank's policies
with respect to capital adequacy) by an amount deemed by such Bank to
be material, then from time to time, the Company shall pay to the
Administrative Agent for the account of such Bank, within ten days
following delivery to the Company of the certificate specified in
paragraph (c) below by such Bank, such additional amount or amounts as
will reimburse such Bank (or its parent) for such reduction.
Notwithstanding the foregoing, in no event shall any Bank be permitted
to receive any payment hereunder constituting interest in excess of
the Highest Lawful Rate.
(c) Each Bank shall notify the Company of any event
occurring after the date hereof entitling such Bank to compensation
under paragraph (a) or (b) of this Section 2.13 (together with a good
faith estimate of the amounts it would be entitled to claim in respect
of such event) as promptly as practicable, but in any event on or
before the date which is 60 days after the related Regulatory Change
or other event; provided that (i) if such Bank fails to give such
notice by such date, such Bank shall, with respect to compensation
payable pursuant to paragraph (a) or (b) of this Section 2.13 in
respect of any costs resulting from such Regulatory Change or other
event, only be entitled to payment under paragraph (a) or (b) of this
Section 2.13 for costs incurred from and after the date of such notice
and (ii) such Bank will take such reasonable actions, if any
(including the designation of a different Applicable Lending Office
for the Loans of such Bank affected by such event) to avoid the need
for, or reduce the amount of, such compensation so long as such
actions will not, in the reasonable opinion of such Bank,
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be materially disadvantageous to such Bank. A certificate of a Bank
setting forth in reasonable detail (i) the Regulatory Change or other
event giving rise to any costs, (ii) such amount or amounts as shall
be necessary to reimburse such Bank (or participating banks or other
entities pursuant to Section 8.11) as specified in paragraph (a) or
(b) of this Section 2.13, as the case may be, and (iii) the
calculation of such amount or amounts, shall be delivered to the
Company (with a copy to the Administrative Agent) promptly after such
Bank determines it is entitled to payment under this Section 2.13, and
shall be conclusive and binding absent manifest error. In preparing
such certificate, such Bank may employ such assumptions and
allocations of costs and expenses as it shall in good ▇▇▇▇▇ ▇▇▇▇
reasonable and may use any reasonable averaging and attribution
method.
(d) In the event any Bank shall seek payment pursuant
to this Section 2.13 or the events contemplated under Section 2.11 or
Section 2.14 shall have occurred with respect to any Bank, the Company
may, provided no Event of Default has occurred and is continuing, give
notice to such Bank (with copies to the Agents) that it wishes to seek
one or more Eligible Assignees (which may be one or more of the Banks,
but which may not be a Person who would be entitled at such time to
claim payment pursuant to this Section 2.13 or with respect to which
any of the events contemplated under Section 2.11 or Section 2.14
would exist at such time if such Person were a Bank under this
Agreement) to assume the Commitment of such Bank and to purchase its
outstanding Loans and Notes (if any). Each Bank requesting payment
pursuant to this Section 2.13, or with respect to which any of the
events contemplated under Section 2.11 or Section 2.14 have occurred,
agrees to sell its Commitment, Loans, Notes (if any), and interest in
this Agreement and the other Loan Papers pursuant to Section 8.11(c)
to any such Eligible Assignee approved by the Company and the
Administrative Agent for an amount equal to the sum of the outstanding
unpaid principal of and accrued interest on such Loans and Notes (if
any) plus all other fees and amounts (including, without limitation,
any payment claimed by such Bank under this Section 2.13 and as to
which such Bank has delivered the certificate required by Section
2.13(c) on or before the date such Commitment, Loans, and Notes (if
any) are purchased) due such Bank hereunder calculated, in each case,
to the date such Commitment, Loans,
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Notes (if any) and interest are purchased, whereupon such Bank shall
have no further Commitment or other obligation to the Company hereunder
or under any other Loan Paper.
(e) Notwithstanding anything herein to the contrary,
no Bank or participant shall be entitled to any payment under this
Section 2.13 with respect to any Competitive Loan.
(f) Without prejudice to the survival of any other
obligations of the Company hereunder, the obligations of the Company
under this Section 2.13 shall survive for one year after the
termination of this Agreement and/or the payment or assignment of any
of the Loans or Notes.
Section 2.14 Change in Legality.
(a) Notwithstanding anything to the contrary herein
contained, if any Regulatory Change shall make it unlawful for any
Bank to make or maintain any Eurodollar Loan or to give effect to its
obligations in respect of Eurodollar Loans as contemplated hereby,
then, by prompt written notice to the Company and to the
Administrative Agent and the Auction Administration Agent, such Bank
may:
(i) declare that Eurodollar Loans will
not thereafter be made by such Bank hereunder, whereupon the
Company shall be prohibited from requesting Eurodollar Loans
from such Bank hereunder unless such declaration is
subsequently withdrawn; and
(ii) if such unlawfulness shall be
effective prior to the end of any Interest Period of an
outstanding Eurodollar Loan, require that all outstanding
Eurodollar Loans with such Interest Periods made by it be
converted to Alternate Base Loans, in which event (A) all such
Eurodollar Loans shall be automatically converted to Alternate
Base Loans as of the effective date of such notice as provided
in paragraph (b) below and (B) all payments and prepayments of
principal which would otherwise have been applied to repay the
converted Eurodollar Loans shall instead be applied to repay
the Alternate Base Loans resulting from the conversion of such
Eurodollar Loans.
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(b) For purposes of this Section 2.14, a notice to the
Company (with a copy to the Administrative Agent and the Auction
Administration Agent) by any Bank pursuant to paragraph (a) above
shall be effective on the date of receipt thereof by the Company. Any
Bank having furnished such a notice agrees to withdraw the same
promptly following any Regulatory Change that makes it lawful for such
Bank to make and maintain Eurodollar Loans.
(c) If, with respect to any Bank, a condition arises
or an event occurs which would, or would upon the giving of notice,
result in the payment of amounts pursuant to Section 2.13 or permit
such Bank, pursuant to this Section 2.14, to suspend its obligation to
make Eurodollar Loans, such Bank, promptly upon becoming aware of the
same, shall notify the Company thereof and shall take such steps as
may reasonably be available to it (including, without limitation,
changing its Applicable Lending Office) to mitigate the effects of
such condition or event, provided that such Bank shall be under no
obligation to take any step that, in its good faith opinion, would (a)
result in its incurring any additional costs in performing its
obligations hereunder and under any outstanding Loan (unless the
Company has notified such Bank of the Company's agreement to reimburse
it for the same) or (b) be otherwise adverse to such Bank in a
material respect.
Section 2.15 INDEMNITY. THE COMPANY SHALL INDEMNIFY EACH BANK
AGAINST ANY LOSS OR REASONABLE EXPENSE WHICH SUCH BANK MAY SUSTAIN OR INCUR AS
A CONSEQUENCE OF (A) ANY FAILURE BY THE COMPANY TO FULFILL ON THE DATE OF ANY
BORROWING HEREUNDER THE APPLICABLE CONDITIONS SET FORTH IN ARTICLE III, (B) ANY
FAILURE BY THE COMPANY TO BORROW HEREUNDER AFTER A NOTICE OF COMMITTED
BORROWING PURSUANT TO ARTICLE II HAS BEEN GIVEN OR AFTER COMPETITIVE BIDS HAVE
BEEN ACCEPTED, (C) ANY PAYMENT, PREPAYMENT, OR CONVERSION OF A EURODOLLAR LOAN
OR FIXED RATE LOAN REQUIRED BY ANY OTHER PROVISION OF THIS AGREEMENT OR
OTHERWISE MADE ON A DATE OTHER THAN THE LAST DAY OF THE APPLICABLE INTEREST
PERIOD FOR ANY REASON, INCLUDING WITHOUT LIMITATION THE ACCELERATION OF
OUTSTANDING LOANS AS A RESULT OF ANY EVENT OF DEFAULT, (D) ANY FAILURE BY THE
COMPANY FOR ANY REASON (INCLUDING WITHOUT LIMITATION THE EXISTENCE OF A DEFAULT
OR AN EVENT OF DEFAULT) TO PAY, PREPAY OR CONVERT A EURODOLLAR LOAN ON THE DATE
FOR SUCH PAYMENT, PREPAYMENT OR CONVERSION, SPECIFIED IN THE RELEVANT NOTICE OF
PAYMENT, PREPAYMENT OR CONVERSION UNDER
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THIS AGREEMENT. THE INDEMNITY OF THE COMPANY PURSUANT TO THE IMMEDIATELY
PRECEDING SENTENCE SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OR REASONABLE
EXPENSE SUSTAINED OR INCURRED OR TO BE SUSTAINED OR INCURRED IN LIQUIDATING OR
EMPLOYING DEPOSITS FROM THIRD PARTIES ACQUIRED TO EFFECT OR MAINTAIN SUCH LOAN
OR ANY PART THEREOF AS A EURODOLLAR LOAN OR FIXED RATE LOAN. SUCH LOSS OR
REASONABLE EXPENSE SHALL INCLUDE, WITHOUT LIMITATION, AN AMOUNT EQUAL TO THE
EXCESS, IF ANY, AS REASONABLY DETERMINED BY EACH BANK OF (I) ITS COST OF
OBTAINING THE FUNDS FOR THE LOAN BEING PAID, PREPAID, OR CONVERTED OR NOT
BORROWED, PAID, PREPAID OR CONVERTED (BASED ON THE LIBO RATE OR, IN THE CASE OF
A FIXED RATE LOAN, THE FIXED RATE OF INTEREST APPLICABLE THERETO) FOR THE
PERIOD FROM THE DATE OF SUCH PAYMENT, PREPAYMENT, OR CONVERSION OR FAILURE TO
BORROW, PAY, PREPAY OR CONVERT TO THE LAST DAY OF THE INTEREST PERIOD FOR SUCH
LOAN (OR, IN THE CASE OF A FAILURE TO BORROW, PAY, PREPAY OR CONVERT, THE
INTEREST PERIOD FOR THE LOAN WHICH WOULD HAVE COMMENCED ON THE DATE OF SUCH
FAILURE TO BORROW, PAY, PREPAY OR CONVERT) OVER (II) THE AMOUNT OF INTEREST (AS
REASONABLY DETERMINED BY SUCH BANK) THAT WOULD BE REALIZED BY SUCH BANK IN
REEMPLOYING THE FUNDS SO PAID, PREPAID, OR CONVERTED OR NOT BORROWED, PAID,
PREPAID OR CONVERTED FOR SUCH PERIOD OR INTEREST PERIOD, AS THE CASE MAY BE. A
CERTIFICATE OF EACH BANK SETTING FORTH ANY AMOUNT OR AMOUNTS AND, IN REASONABLE
DETAIL, THE COMPUTATIONS THEREOF, WHICH SUCH BANK IS ENTITLED TO RECEIVE
PURSUANT TO THIS SECTION 2.15 SHALL BE DELIVERED TO THE COMPANY (WITH A COPY TO
THE ADMINISTRATIVE AGENT) AND SHALL BE CONCLUSIVE, IF MADE IN GOOD FAITH,
ABSENT MANIFEST ERROR. THE COMPANY SHALL PAY TO THE ADMINISTRATIVE AGENT FOR
THE ACCOUNT OF EACH BANK THE AMOUNT SHOWN AS DUE ON ANY CERTIFICATE WITHIN 30
DAYS AFTER ITS RECEIPT OF THE SAME. NOTWITHSTANDING THE FOREGOING, IN NO EVENT
SHALL ANY BANK BE PERMITTED TO RECEIVE ANY COMPENSATION HEREUNDER CONSTITUTING
INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE. WITHOUT PREJUDICE TO THE
SURVIVAL OF ANY OTHER OBLIGATIONS OF THE COMPANY HEREUNDER, THE OBLIGATIONS OF
THE COMPANY UNDER THIS SECTION 2.15 SHALL SURVIVE FOR ONE YEAR AFTER THE
TERMINATION OF THIS AGREEMENT AND/OR THE PAYMENT OR ASSIGNMENT OF ANY OF THE
LOANS OR NOTES.
Section 2.16 Pro Rata Treatment. Except as permitted under
Section 2.9(d), Section 2.13(c) and Section 2.15 with respect to interest, (a)
each payment or prepayment of principal and each payment of interest with
respect to a Competitive Borrowing (at a particular Competitive Bid Rate) or a
Committed Borrowing shall be made pro rata among the Banks in accordance with
the respective
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principal amounts of the Loans extended by each Bank, if any, with respect to
such Competitive Borrowing or Committed Borrowing, and (b) conversions of
Committed Loans to Committed Loans of another Type, continuations of Committed
Loans that are Eurodollar Loans from one Interest Period to another Interest
Period, refinancings of Competitive Loans with Committed Loans, and Committed
Loans which are not refinancings of other Loans shall be made pro rata among
the Banks in accordance with their respective Commitments.
Section 2.17 Sharing of Setoffs. Each Bank agrees that if it
shall through the exercise of a right of banker's lien, setoff, or counterclaim
against the Company (pursuant to Section 8.6 or otherwise), including, but not
limited to, a secured claim under Section 506 of Title 11 of the United States
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Bank under any applicable Debtor Relief Law or
otherwise, obtain payment (voluntary or involuntary) in respect of the
Committed Loans held by it (other than pursuant to Section 2.9(d), Section
2.13, or Section 2.15) as a result of which the unpaid principal portion of the
Committed Loans held by it shall be proportionately less than the unpaid
principal portion of the Committed Loans held by any other Bank, it shall be
deemed to have simultaneously purchased from such other Bank a participation in
the Committed Loans held by such other Bank, so that the aggregate unpaid
principal amount of the Committed Loans and participations in Committed Loans
pursuant to this Section 2.17 held by each Bank shall be in the same proportion
to the aggregate unpaid principal amount of all Committed Loans then
outstanding as the principal amount of the Committed Loans held by it prior to
such exercise of banker's lien, setoff, or counterclaim was to the principal
amount of all Committed Loans outstanding prior to such exercise of banker's
lien, setoff, or counterclaim; provided, however, that if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.17 and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. The
Company expressly consents to the foregoing arrangements and agrees that any
Bank holding a participation in a Committed Loan deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff, or
counterclaim with respect to any and all moneys owing by the Company to such
Bank as fully as if such Bank had made a Committed Loan directly to the Company
in the amount of such participation.
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Section 2.18 Payments.
(a) The Company shall make each payment hereunder and
under any instrument delivered hereunder not later than 11:00 a.m.
(Houston, Texas time) on the day when due in dollars to the
Administrative Agent at its Principal Office for the account of the
Banks, in federal or other immediately available funds. The
Administrative Agent will promptly thereafter cause to be distributed
like funds relating to the payment of principal of or interest on
Committed Loans (other than pursuant to Section 2.9(d), Section 2.13,
and Section 2.15) or Facility Fees ratably to the Banks and like funds
relating to the payment of any other amount (including, without
limitation, payments of principal or interest on Competitive Loans
which are not made ratably to the Banks) payable to any Bank to such
Bank for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement.
(b) Whenever any payment hereunder or under any Note
shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such
extension of time shall in all such cases be included in the
computation of payment of interest or Facility Fee, as the case may
be; provided, however, if such extension would cause payment of
interest on or principal of a Eurodollar Loan to be made in the next
following calendar month, such payment shall be made on the next
preceding Business Day.
(c) Unless the Administrative Agent shall have
received notice from the Company prior to the date on which any
payment is due to the Banks hereunder that the Company will not make
such payment in full, the Administrative Agent may assume that the
Company has made or will make such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank. If
and to the extent the Company shall not have so made such payment in
full to the Administrative Agent, each Bank shall repay to the
Administrative Agent forthwith on demand such amount distributed to
such Bank together with interest thereon, for each day from the date
such amount is distributed to such Bank until the date such Bank
repays such amount to the Administrative Agent, at the Federal Funds
Effective Rate.
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(d) Except as expressly provided in Section 2.19, all
payments (whether of principal, interest, fees, reimbursements, or
otherwise) by the Company under this Agreement shall be made without
setoff or counterclaim and shall be made free and clear of and without
deduction for any present or future Tax, levy, impost, or any other
charge, if any, of any nature whatsoever now or hereafter imposed by
any Tribunal. Except as otherwise provided in Section 2.19, if the
making of such payments by the Company is prohibited by Law unless
such a Tax, levy, impost, or other charge is deducted or withheld
therefrom, the Company shall pay to the Administrative Agent, on the
date of each such payment, such additional amounts (without
duplication of any other amounts required to be paid by the Company
pursuant to Section 2.13) as may be necessary in order that the net
amounts received by the Banks after such deduction or withholding
shall equal the amounts which would have been received if such
deduction or withholding were not required. The Company shall confirm
that all applicable Taxes, if any, imposed on this Agreement or
transactions hereunder shall have been properly and legally paid by it
to the appropriate taxing authorities by sending official Tax receipts
or notarized copies of such receipts to the Administrative Agent
within 30 days after payment of any applicable Tax.
Section 2.19 Tax Forms. With respect to each Bank which is
organized under the Laws of a jurisdiction outside the United States, within 30
days after the Execution Date, and from time to time thereafter if requested by
the Company or the Administrative Agent, or as otherwise required by law, each
such Bank shall provide the Administrative Agent and the Company with the forms
prescribed by the Internal Revenue Service of the United States certifying as
to such Bank's status for purposes of determining exemption from United States
withholding Taxes with respect to all payments to be made to such Bank
hereunder or other documents satisfactory to the Company and the Administrative
Agent indicating that all payments to be made to such Bank hereunder are
subject to such Tax at a rate reduced by an applicable Tax treaty. Unless the
Company and the Administrative Agent have received such forms or such documents
indicating that payments hereunder are not subject to United States withholding
Tax, the Company or the Administrative
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Agent (after notice from the Administrative Agent to such Bank of such
non-receipt) shall withhold Taxes from such payments at the applicable
statutory rate (or any reduced applicable Tax treaty rate) in the case of
payments to or for any Bank organized under the Laws of a jurisdiction outside
the United States.
Section 2.20 Calculation of LIBO Rates. The provisions of this
Agreement relating to calculation of the LIBO Rate are included only for the
purpose of determining the rate of interest or other amounts to be paid
hereunder that are based upon such rate, it being understood that each Bank
shall be entitled to fund and maintain its funding of all or any part of a
Eurodollar Loan as it sees fit. All such determinations hereunder, however,
shall be made as if each Bank had actually funded and maintained funding of
each Eurodollar Loan through the purchase in the Eurodollar InterBank Market of
one or more eurodollar deposits in an amount equal to the principal amount of
such Loan and having a maturity corresponding to the Interest Period for such
Loan.
Section 2.21 Booking Loans. Subject to Section 2.19, any Bank
may make, carry, or, transfer Loans at, to, or for the account of any of its
branch offices or the office of any Affiliate.
Section 2.22 Quotation of Rates. It is hereby acknowledged
that the Company may call the Administrative Agent on or before the date on
which notice of a Borrowing is to be delivered by the Company in order to
receive an indication of the rate or rates then in effect, but that such
projection shall not be binding upon the Administrative Agent or any Bank nor
affect the rate of interest which thereafter is actually in effect when the
election is made.
ARTICLE II
CONDITIONS OF LENDING
Section 3.1 Conditions Precedent to Initial Borrowing. The
obligation of each Bank to make its initial Loan is subject to the condition
precedent that the Administrative Agent shall have received on or before the
initial Borrowing Date the following, each dated (unless otherwise indicated)
such day and in sufficient copies for each Bank:
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(a) Officer's Certificates dated the Execution Date
certifying, inter alia, (i) true and correct copies of resolutions
adopted by the Board of Directors or Executive Committee, as
appropriate, of the Company authorizing the Company to borrow and
effect other transactions hereunder, (ii) a true and correct copy of
the Company's bylaws in effect on the date hereof, (iii) the
incumbency and specimen signatures of the Persons executing any
documents on behalf of the Company, (iv) the truth of the
representations and warranties made by the Company in this Agreement
(or, if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date), and
(v) the absence of the occurrence and continuance of any Default or
Event of Default.
(b) A copy of the Company's charter and all amendments
thereto, accompanied by certificates that such copy is correct and
complete, one certificate dated within twenty days prior to the
Execution Date and issued by the Secretary of State of Texas and one
certificate dated the Execution Date and executed by the corporate
secretary or assistant secretary of the Company.
(c) Certificates (dated within twenty days prior to
the Execution Date) of existence and good standing of the Company from
appropriate officials of Texas.
(d) The written opinions of counsel to the Company and
counsel to the Agents, substantially in the form set out in Exhibits
E-1 and E-2, respectively, each dated the Effective Date.
(e) An Administrative Questionnaire (dated any date
prior to the Effective Date) completed by each Bank which is a party
hereto on the Effective Date.
(f) Such other agreements, documents, instruments,
opinions, certificates, and evidences as the Administrative Agent may
reasonably request prior to the Effective Date.
Section 3.2 Conditions Precedent to Each Committed Borrowing.
The obligation of each Bank to make a Committed Loan on the occasion of any
Committed Borrowing (including the initial Committed Borrowing) shall be
subject to the further conditions
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precedent that on the date of such Committed Borrowing the following statements
shall be true (and each of the giving of the applicable Notice of Committed
Borrowing and the acceptance by the Company of the proceeds of such Committed
Borrowing shall constitute a representation and warranty by the Company that on
the date of such Committed Borrowing such statements are true):
(a) The representations and warranties contained in
Article IV (except Section 4.5) are correct in all material respects
on and as of the date of such Committed Borrowing (or, if any such
representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date), before and after giving
effect to such Committed Borrowing, as though made on and as of such
date;
(b) No event has occurred and is continuing, or would
result from such Committed Borrowing, which constitutes either a
Default or an Event of Default; and
(c) Following the making of such Committed Borrowing
and all other Borrowings to be made on the same day under this
Agreement, the aggregate principal amount of all Loans then
outstanding shall not exceed the Total Commitment.
Section 3.3 Conditions Precedent to Each Competitive
Borrowing. The obligation of each Bank to make a Competitive Loan as part of a
Competitive Borrowing (including the initial Competitive Borrowing) is subject
to the further conditions precedent that (a) the Auction Administration Agent
and the Administrative Agent shall have received a Competitive Bid Request with
respect thereto, and (b) on the date of such Competitive Borrowing the
following statements shall be true (and each of the giving of the applicable
Competitive Bid Request and the acceptance by the Company of the proceeds of
such Competitive Borrowing shall constitute a representation and warranty by
the Company that on the date of such Competitive Borrowing such statements are
true):
(a) The representations and warranties contained in
Article IV (except Section 4.5) are correct in all material respects
on and as of the date of such Competitive Borrowing (or if any such
representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date), before and after giving
effect to such Competitive Borrowing, as though made on and as of such
date;
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(b) No event has occurred and is continuing, or would
result from such Competitive Borrowing, which constitutes either a
Default or an Event of Default; and
(c) Following the making of such Competitive Borrowing
and all other Borrowings to be made on the same day under this
Agreement, the aggregate principal amount of all Loans then
outstanding shall not exceed the Total Commitment.
Section 3.4 Legal Details. All documents executed or
submitted pursuant hereto by the Company shall be reasonably satisfactory in
form and substance to the Documentation Agent and the Administrative Agent and
their counsel. The Administrative Agent shall, promptly following satisfaction
of the conditions specified in Section 3.1, notify the Company and each of the
Banks of such satisfaction and the date of the Effective Date. The
Administrative Agent and its counsel shall receive all information, and such
counterpart originals or certified or other copies of such materials, as they
may reasonably deem necessary or appropriate. All legal matters incident to
the transactions contemplated by this Agreement (including without limitation
matters arising from time to time as a result of changes occurring with respect
to any Laws) shall be reasonably satisfactory to counsel to the Documentation
Agent and the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agents and Banks as
follows:
Section 4.1 Organization, Authority, and Qualifications.
(a) The Company and each of its Material Subsidiaries
is a corporation duly organized, validly existing, and in good
standing under the Laws of the jurisdiction of its incorporation;
(b) The Company has the corporate power and authority
to execute, deliver, and perform this Agreement and the other Loan
Papers and to borrow hereunder;
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(c) On the Execution Date, the Company and each of its
Material Subsidiaries is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction where the
character of its Properties or nature of its activities make such
qualification necessary, except where the failure to be so qualified
or in good standing would not have a Material Adverse Effect; and
(d) On the Execution Date, the Company has no Material
Subsidiaries.
Section 4.2 Financial Statements. The Current Financials
present fairly the consolidated financial position of the Company and its
Subsidiaries on the date thereof and the consolidated results of operations and
changes in financial position of the Company and its Subsidiaries for the
period then ended, all in conformity with GAAP. Except for transactions
related to or contemplated by the Loan Papers and transactions disclosed in
writing to the Administrative Agent before the Execution Date, there has been
no Material Adverse Change between the date or dates of the Current Financials
and the Execution Date.
Section 4.3 Compliance with Agreement and Laws. On the
Execution Date, neither the Company nor any of its Material Subsidiaries is in
default in any material respect under the provisions of any instrument
evidencing any material obligation, indebtedness, or liability of the Company
or any of its Material Subsidiaries or of any agreement relating thereto.
Neither the Company nor any of its Material Subsidiaries is in violation of any
Law, which default or violation would have a Material Adverse Effect.
Section 4.4 Authorization; No Breach; and Valid Agreements.
The execution, delivery, and performance of this Agreement, the borrowings
hereunder, and the execution, delivery, and performance of the other Loan
Papers by the Company have been duly authorized by all requisite corporate
action on the part of the Company and will not violate its charter or bylaws
and will not violate any Law or any order of any Tribunal, and will not
conflict with, result in a breach of the provisions of or constitute a default
under, or result in the imposition of any Lien upon the Property of the Company
pursuant to the provisions of, any material loan agreement, credit agreement,
indenture, mortgage, deed of trust, franchise, permit, license, note, contract,
or other material agreement or
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instrument to which the Company is now a party. The Loan Documents are the
valid and binding obligations of the Company and are enforceable in accordance
with their respective terms.
Section 4.5 Litigation and Judgments. Except as previously
disclosed to the Administrative Agent in writing, neither the Company nor any
of its Subsidiaries is either party to or aware of the threat of any Litigation
which has, in the Company's opinion, a reasonable probability of success and
which, if determined adversely to the Company or such Subsidiary, would have a
Material Adverse Effect. To the knowledge of the Company, on the Execution
Date there is no outstanding unsatisfied money judgment against the Company or
any of its Subsidiaries in an amount in excess of $50,000,000, and there are no
outstanding unsatisfied money judgments against the Company or any of its
Subsidiaries which individually or in the aggregate have or would have a
Material Adverse Effect.
Section 4.6 Ownership of Properties. The Company and each of
its Material Subsidiaries has good and marketable title (except for Permitted
Liens) or valid leasehold interests in all of its material Properties which are
owned or used in connection with its business.
Section 4.7 Taxes. To the extent that failure to do so would
have a Material Adverse Effect, the Company and each of its Material
Subsidiaries has filed all Tax returns or reports required of it and has paid
all Tax liability shown thereon as due to the extent the same has become due
and before it may have become delinquent (except to the extent being contested
in good faith by appropriate proceedings and for which adequate reserves have
been established). The federal income tax liability of the Company and its
Subsidiaries has been audited by the Internal Revenue Service and has been
finally determined and satisfied for all taxable years up to and including the
taxable year ended December 31, 1986.
Section 4.8 Approvals Required. Neither the execution and
delivery of this Agreement and the other Loan Papers by the Company, nor the
consummation by the Company of any of the transactions contemplated hereby or
thereby requires the consent or approval of, the giving of notice to, or the
registration, recording, or filing of any document with, or the taking of any
other action in respect of any Tribunal except for the routine filing of copies
of this Agreement and certain other Loan Papers with the Securities and
Exchange Commission, except for any of the foregoing required of any Bank or
Agent.
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Section 4.9 Business; Status as Air Carrier. The Company is
an air carrier engaged in scheduled air transportation and is in all material
respects duly qualified and licensed under all applicable Laws to carry on its
business as a scheduled airline currently subject to regulation by the Federal
Aviation Administration and the Department of Transportation.
Section 4.10 ERISA Compliance. The Company is in compliance in
all material respects with ERISA and the rules and regulations thereunder. The
Company has no material unfunded vested liability under any Plan.
Section 4.11 Insurance. The Company maintains with insurance
companies or associations of recognized responsibility (or, as to workers'
compensation or similar insurance, with an insurance fund or by self-insurance
authorized by the jurisdictions in which it operates) insurance concerning its
Properties and businesses against such casualties and contingencies and of such
types and in such amounts (and with co-insurance, self-insurance and
deductibles) as is customary in the case of same or similar businesses.
Section 4.12 Purpose of Loan. Less than 25% of the value of
the assets of the Company (individually) and the Company and its Subsidiaries
(determined on a consolidated basis) that are subject to the restrictions in
Section 5.12 and Section 5.13 is attributable to Margin Stock. The proceeds of
the Loans will be used for general corporate purposes, including acquisitions,
and no part of the proceeds of any Loan will be used for any purpose which
would violate, or be inconsistent with, any of the margin regulations of the
Board.
Section 4.13 Investment Company Act. Neither the Company nor
any of its Subsidiaries is an "investment company" or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment company", as
such terms are defined in the Investment Company Act of 1940, as amended.
Section 4.14 General. As of the Execution Date, there is no
material fact or condition relating to the Loan Papers or the financial
condition and business of the Company and its
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Subsidiaries which has a Material Adverse Effect and which has not been
related, in writing, to the Administrative Agent, other than industry-wide
risks in the ordinary course of business associated with the types of business
conducted by the Company and its Subsidiaries. All writings exhibited or
delivered to any of the Agents and Banks by or on behalf of the Company are and
will be genuine and in all material respects what they purport and appear to
be.
ARTICLE V
COVENANTS
So long as the Company may borrow hereunder and until the Obligation
has been paid in full, the Company covenants as follows:
Section 5.1 Performance of Obligations. The Company shall
duly and punctually pay and perform each of the Obligations under this
Agreement and the other Loan Papers.
Section 5.2 Compliance with Laws. The Company shall comply,
and shall cause each of its Material Subsidiaries to comply, in all material
respects with all applicable Laws, except for any noncompliance which
individually or in the aggregate would not have a Material Adverse Effect, and
such compliance shall include, without limitation, paying before the same
become delinquent all Taxes imposed upon the Company or any of its Material
Subsidiaries or its or their Properties, except to the extent contested
diligently and in good faith by proper proceedings, and for which adequate
reserves are established in accordance with GAAP.
Section 5.3 Maintenance of Existence, Licenses and Franchises;
Compliance With Agreements. Except to the extent otherwise permitted in
Article V, the Company shall maintain, and shall cause each of its Material
Subsidiaries to maintain, its existence, and the Company shall preserve and
maintain, and shall cause each of its Material Subsidiaries to preserve and
maintain, all material licenses, privileges, franchises, certificates,
authorizations, and other permits and agreements necessary for the operation of
its business. The Company shall comply, and shall cause each of its Material
Subsidiaries to comply, with all material agreements binding on it or affecting
its properties or business, except for any noncompliance which individually or
in the aggregate would not have a Material Adverse Effect.
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Section 5.4 Maintenance of Properties. The Company shall, and
shall cause each of its Material Subsidiaries to, cause all of its Properties
used or useful in the conduct of its business to be maintained and kept in good
condition, repair, and working order, and supplied with all necessary
equipment, and cause to be made all necessary repairs, renewals, replacements,
betterments, and improvements thereof, all as in the judgment of the Company
may be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times. Subject to the provisions
of this Section 5.4, the Company shall, at its expense, maintain, service,
repair, overhaul, improve, and rebuild the Aircraft so as to keep all Aircraft
in as good a condition as presently exists or as when acquired by the Company
if any Aircraft are hereafter acquired (ordinary wear and tear excepted), and
as required to meet the air-worthiness standards of the Federal Aviation
Administration and the Department of Transportation (to the extent such
standards are applicable to the Aircraft) or the standards observed by the
Company with respect to Property of similar type, whichever is higher. The
Company shall comply with all applicable mandatory maintenance, service,
repair, and overhaul manuals issued by the respective manufacturers of the
Aircraft. The Company shall comply with all Laws of Tribunals having
jurisdiction over the Company or the Aircraft, including all applicable
requirements of the Federal Aviation Administration and the Department of
Transportation as to operation, maintenance, or use of the Aircraft. In the
event that any such Law requires alteration of any Aircraft, the Company shall
conform thereto or obtain conformance therewith at no expense to the Agents or
the Banks and will maintain such Aircraft in proper operating condition under
such Laws; provided, however, that the Company may, in good faith, contest the
validity or application of any such Law in any reasonable manner which does not
materially adversely affect the Rights of the Agents or the Banks.
Section 5.5 Maintenance of Books and Records. The Company
shall, and shall cause each of its Subsidiaries to, maintain proper books of
record and account in which full, true, and correct entries in accordance with
GAAP consistently applied (except for any change with which the Company's
independent auditors concur) will be made of all dealings and transactions in
relation to their business and activities.
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Section 5.6 Inspection. At reasonable times and upon
reasonable notice, the Company shall permit, and shall cause each of its
Material Subsidiaries to permit, any employees and other representatives of the
Administrative Agent or any Bank to visit and inspect any Properties, to
examine all books of account, records, reports, and other papers, to make
copies and extracts therefrom (subject to any confidentiality agreements,
copyright restrictions, and similar limitations), and to discuss the Company's
and Material Subsidiaries' affairs, finances, Properties, condition (financial
or otherwise) and accounts with the Company's and Material Subsidiaries'
officers, employees and independent certified public accountants, at such times
and as often as may be reasonably requested; provided, however, that (a) any
such inspection which includes Aircraft shall be a visual, walk-around
inspection and may not include opening any panels, bays or the like of any
Aircraft, (b) no exercise of any inspection rights provided for in this Section
5.6 shall interfere with the normal operation or maintenance of the Aircraft
by, or the business of, the Company, and (c) the Administrative Agent and each
Bank shall cause their respective employees and representatives to hold in
strict confidence all information acquired pursuant to such Agent's or Bank's
Rights under this Section 5.6, except for necessary disclosure to participants
in the Loans or Commitments, disclosure in connection with disputes relating to
the Loan Papers, or disclosure compelled by judicial or administrative process
or by other requirements of Law.
Section 5.7 Insurance. The Company shall maintain insurance
with such insurers, in such amounts (including by way of self-insurance and
deductibles), in such forms and covering such risks as may be then customary in
the domestic airlines industry. Without in any way limiting the foregoing, the
Company shall maintain such insurance on the Aircraft, including "all-risk"
hull insurance and aviation liability insurance.
Section 5.8 Appraisals. On each Appraisal Delivery Date, the
Company shall submit an Appraisal of the Pool Assets to the Administrative
Agent as of the date which is 30 days prior to such Appraisal Delivery Date;
provided, however, that if such Appraisal is to be delivered on such Appraisal
Delivery Date as a consequence of clause (b) of the definition thereof, the
Appraisal to be delivered on such date shall only be in respect of the assets
to be removed from and/or added to the Pool Assets.
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Section 5.9 Coverage Ratio. The Company shall maintain at all
times a Coverage Ratio of not less than 1.25 to 1.0.
Section 5.10 Reporting Requirements. The Company shall furnish
to the Administrative Agent (with sufficient copies for each Bank):
(a) Within 120 days after the last day of each fiscal
year of the Company, Financial Statements (it being understood that
delivery of the Company's annual report on Form 10-K for any fiscal
year as filed with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934, as amended, will satisfy this
requirement with respect to such fiscal year) showing the consolidated
financial condition and results of operations of the Company and its
Subsidiaries as of, and for the year ended on, such last day,
accompanied by (i) the opinion, without material qualification, of
Auditors, based on an audit using generally accepted auditing
standards, that such Financial Statements were prepared in accordance
with GAAP and present fairly the consolidated financial condition and
results of operations of the Company and its consolidated Subsidiaries
and (ii) a Financial Report Certificate;
(b) Within 60 days after the last day of each of the
first three fiscal quarters of the Company (i) Financial Statements
showing the consolidated financial condition and results of operations
of the Company and its consolidated Subsidiaries as of, and for the
period from the beginning of the current fiscal year to, such last day
(it being understood that delivery of the Company's quarterly report
on Form 10-Q for any fiscal quarter as filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934,
as amended, will satisfy this requirement with respect to such fiscal
quarter and, if applicable, the portion of the Company's fiscal year
ended at the end of such quarter), and (ii) a Financial Report
Certificate;
(c) (i) Promptly after mailing, true copies of all
reports, statements, documents, plans, and other written
communications furnished by or on behalf of the Company or any of its
Subsidiaries to stockholders generally and (ii) promptly upon the
filing thereof, copies of all registration statements (other than the
exhibits thereto and any
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registration statements on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) which the Company
shall have filed with the Securities and Exchange Commission;
(d) Notice, promptly after the Company or any of its
Material Subsidiaries knows or has reason to know of a Default or
Event of Default, specifying the nature thereof and what action the
Company or any Subsidiary has taken, is taking, or proposes to take
with respect thereto;
(e) Prompt notice of any legal or arbitral
proceedings, and of all proceedings by or before any governmental or
regulatory authority or agency, and any material development in
respect of such legal or other proceedings, affecting the Company,
except proceedings which, if adversely determined, would not have a
Material Adverse Effect or proceedings with respect to which the
Company, in good faith and upon consultation with outside counsel,
believes an adverse determination in respect thereof to be unlikely;
and
(f) Promptly upon the Administrative Agent's
reasonable request, such other relevant information (not otherwise
required to be furnished under the Loan Papers) respecting the
business affairs, assets, and liabilities of the Company and any of
its Material Subsidiaries.
Section 5.11 Use of Proceeds. Proceeds advanced hereunder
shall be used only as represented herein.
Section 5.12 Restrictions on Sale-Leaseback Transactions; Pool
Assets.
(a) At all times prior to the Asset Pool Date, neither
the Company nor any of its consolidated Subsidiaries will engage in
any Sale-Leaseback Transaction unless the amount of Sale-Leaseback
Debt resulting from such transaction, plus the aggregate of all other
Sale-Leaseback Debt then existing, does not at the time exceed 10% of
Consolidated Net Tangible Assets; provided, however, if a
Sale-Leaseback Transaction would result in Sale-Leaseback Debt
exceeding such 10% limitation, then such Sale-Leaseback Transaction
shall be permitted if such excess amount of the Sale-Leaseback Debt
(i) were treated as Debt secured by a Lien, and (ii) would not,
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together with all other Debt of the Company and its Subsidiaries
existing at the time and secured by Liens not excepted pursuant to
Section 5.13(a), exceed the limitation imposed by Section 5.13(b).
(b) At all times on or after the Asset Pool Date, the
Company (i) will ensure that the Appraised Value of the Pool Assets
shall satisfy the Collateral Coverage Test (based upon the most recent
Appraisal delivered to the Administrative Agent and the Banks pursuant
to the provisions of Section 5.8), and (ii) will not convey, sell,
lease, transfer or otherwise dispose of, whether voluntarily or
involuntarily (it being understood that loss of property due to theft,
destruction, confiscation, prohibition on use or similar event shall
constitute a disposal for purposes of this covenant), or remove or
substitute, any Pool Asset (or any engine included in the Pool Assets
unless such engine is replaced by another working engine or engines of
comparable value, assuming half-time condition) or agree to do any of
the foregoing at any future time, except that:
(1) so long as no Event of Default
exists, the Company may replace a Pool Asset with another
asset of the Company (and Schedule II shall be modified to
reflect such replacement), provided that (A) such replacement
shall be made on a dollar-for-dollar basis based upon (x) in
the case of the asset being removed from the Pool Assets, the
Appraised Value of such Pool Asset (as determined by the most
recently delivered Appraisal with respect to such Pool Asset)
and (y) in the case of the asset being added to the Pool
Assets, the Appraised Value of such asset (as determined by an
Appraisal performed at the time of such replacement), and (B)
prior to effecting the replacement, the Company shall have
delivered a certificate of the Company signed by its duly
authorized officer to the Administrative Agent certifying
compliance with this Section 5.12(b) and attaching to such
certificate the Appraisal required by Section 5.8;
(2) so long as no Event of Default exists
or would result therefrom, the Company may remove an asset
from the Pool Assets (and Schedule II shall be modified to
reflect such removal), provided that (A) after giving effect
to such removal, the Appraised Value of the
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remaining Pool Assets (as determined by an Appraisal of all
Pool Assets performed at the time of such removal) shall
satisfy the Collateral Coverage Test, and (B) prior to
effecting the removal, the Company shall have delivered a
certificate of the Company signed by its duly authorized
officer to the Administrative Agent certifying that, and
providing calculations demonstrating that, after giving effect
to such removal, the Appraised Value of the Pool Assets shall
satisfy the Collateral Coverage Test, and otherwise certifying
compliance with this Section 5.12(b) and attaching to such
certificate Appraisals of all Pool Assets obtained in
connection with such removal; and
(3) in the event (x) that an Appraisal
furnished pursuant to Section 5.8 discloses that the
Collateral Coverage Test is not satisfied or (y) the
Collateral Coverage Test is not satisfied following an
involuntary disposal of any Pool Asset (or any engine included
in the Pool Assets unless such engine is replaced by another
working engine or engines of comparable value, assuming
half-time condition) (whether by loss of property due to
theft, destruction, confiscation, prohibition on use, any
similar event or otherwise), based upon the most recent
Appraisal of the Pool Assets (from which the appraised values
of the Pool Assets which are the subject of the involuntary
disposition shall be subtracted) furnished pursuant to Section
5.8, the Company shall within 60 days after the date of such
Appraisal or involuntary disposal, as the case may be,
designate additional assets as Pool Assets to the extent that,
after giving effect to such designation the Appraised Value of
the Pool Assets, based on the most recently delivered
Appraisal with respect to assets already constituting Pool
Assets and based on an Appraisal performed at the time of such
addition with respect to assets being added to Pool Assets,
shall satisfy the Collateral Coverage Test (and Schedule II
shall be modified to reflect such addition), provided that (A)
at the time of such addition, the Administrative Agent and the
Banks shall have received a certificate of the Company signed
by its duly authorized officer certifying that the conditions
set forth in this Section 5.12(b) shall have been satisfied
after giving effect to such addition and attaching thereto
such Appraisal, and (B) the asset being added shall constitute
Stage 3 Equipment.
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Section 5.13 Restrictions on Liens.
(a) At all times prior to the Asset Pool Date, the
Company will not, nor will it permit any Material Subsidiary to,
issue, assume or guarantee any Debt directly or indirectly secured or
collateralized by any Lien of or upon any Property of the Company or
any Material Subsidiary (including without limitation shares of
capital stock or indebtedness issued by any Material Subsidiary),
whether such Property is owned at the date of this Agreement or
hereafter acquired, without making effective provision whereby the
Obligation (together with, if the Company shall so determine, any
other Debt issued, assumed or guaranteed by the Company or any
Material Subsidiary ranking equally with the Obligation and then
existing or thereafter created) shall be secured by such Lien equally
and ratably with (or, at the option of the Company, prior to) such
Debt, so long as such Debt shall be so secured or collateralized;
provided that the foregoing shall not apply to, nor prevent the
creation or existence of, any of the following:
(1) Liens of or upon any Property owned
by the Company or any Material Subsidiary at the date of this
Agreement or thereafter acquired or constructed by the Company
or any Material Subsidiary, to secure any Debt issued, assumed
or guaranteed by the Company or any Material Subsidiary (i)
for the purpose of financing or refinancing all or any part of
the purchase price or cost of construction of such Property
and (ii) prior to, at the time of, or within 270 days after
the later of the acquisition, completion of construction or
commencement of commercial operation of such Property;
(2) in addition to Liens contemplated by
clauses (3) and (4) below, Liens of or upon any Property which
existed at the time of acquisition of such Property (provided
such Liens shall not extend to any Property theretofore owned
by the Company or any Material Subsidiary);
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(3) Liens of or upon any Property of a
corporation, which Liens exist at the time such corporation is
merged with or into or consolidated with the Company or any
Material Subsidiary;
(4) Liens of or upon any Property of a
corporation, which Liens exist at the time such corporation
becomes a Material Subsidiary;
(5) Liens to secure Debt of any Material
Subsidiary to the Company or to another Material Subsidiary or
to secure Debt of the Company to any Material Subsidiary;
(6) Liens in favor of any Tribunal to
secure partial, progress, advance or other payments pursuant
to any contract or statute or to secure any Debt incurred for
the purpose of financing all or any part of the purchase price
or cost of constructing or improving the Property subject to
such Liens, including without limitation Liens to secure Debt
of the industrial revenue bond type;
(7) Liens of or upon deposits of cash or
cash equivalents in favor of banks or other depository
institutions;
(8) any Lien created as a result of a
Sale-Leaseback Transaction permitted by Section 5.12(a), other
than a Sale-Leaseback Transaction permitted by virtue of the
proviso clause thereof;
(9) Permitted Liens;
(10) pledges or deposits under worker's
compensation, unemployment insurance and other social security
legislation (other than ERISA);
(11) deposits to secure the performance of
bids, trade contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the
ordinary course of business;
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(12) easements, rights-of-way,
restrictions and other similar encumbrances incurred in the
ordinary course of business and encumbrances consisting of
zoning restrictions, easements, licenses, restrictions on the
use of Property or minor imperfections in title thereto which,
in the aggregate, are not material in amount, and which do not
in any case materially detract from the value of the Property
subject thereto or interfere with the ordinary conduct of the
business of the Company or any of its Material Subsidiaries;
or
(13) any extension, renewal or replacement
(or successive extensions, renewals or replacements) in whole
or in part of Debt secured by any Lien existing at the date of
this Agreement or any Lien referred to in the foregoing
clauses (1) through (12), inclusive; provided, however, that
the principal amount of Debt secured thereby shall not exceed
the principal amount of Debt so secured at the time of such
extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of
the Property (plus improvements and construction on such
Property), which was subject to the Lien securing the Debt so
extended, renewed or replaced.
(b) Notwithstanding the provisions of subsection (a)
of this Section 5.13, the Company or any Material Subsidiary may,
without equally and ratably securing the Obligation, issue, assume or
guarantee any Debt secured by a Lien not excepted by clauses (1)
through (13) of such subsection (a), if the aggregate amount of such
Debt, together with all other Debt of the Company and its Material
Subsidiaries existing at such time and secured by Liens not so
excepted, does not at the time exceed 10% of Consolidated Net Tangible
Assets.
(c) In the event the Company shall directly or
indirectly secure or collateralize any Debt by any Lien of or upon any
Aircraft, then the Company shall be deemed to have satisfied any
resulting obligations under subsection (a) of this Section 5.13 to
secure the Obligation equally and ratably with such Debt, if it shall
secure or collateralize the Obligation with a Lien of the same type
and rank of or upon other Aircraft, which other Aircraft shall have no
less equivalent value relative to the aggregate principal amount of
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the Obligation than the Aircraft first referred to have in relation to
the aggregate principal amount of such Debt. All such Liens granted
to or for the benefit of the Banks shall be granted and perfected
pursuant to documentation reasonably satisfactory to the
Administrative Agent and its counsel.
(d) At all times on or after the Asset Pool Date, the
Company will not, nor will it permit any Material Subsidiary to,
create, assume or suffer to exist any Lien upon or with respect to the
Pool Assets, or enter into any arrangement with any Person that would
materially negatively impact the value of any Pool Asset realizable by
any third party or assign any right to receive the proceeds from the
sale, transfer or disposition of any of the Pool Assets, or file or
suffer to exist the filing with respect to any of the Pool Assets of
any financing statement naming the Company or any Material Subsidiary
as debtor under the Uniform Commercial Code or any similar notice of
Lien naming the Company or any Material Subsidiary as debtor under any
similar recording or notice statute (including, without limitation,
any filing under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, Section 44107), other
than Permitted Liens affecting Pool Assets.
(e) At all times on or after the Asset Pool Date, the
Company will not enter into or suffer to exist, and will not permit
any of its Material Subsidiaries to enter into or suffer to exist, any
agreement prohibiting or conditioning the creation or assumption of
any Lien upon any Pool Asset.
Section 5.14 Mergers and Dissolutions. Neither the Company nor
any Subsidiary will merge or consolidate with any Person other than any merger
or consolidation whereby the Company (or, if the Company is not involved, the
Subsidiary) is the surviving corporation and no Default or Event of Default
exists or would result therefrom. Neither the Company nor any Subsidiary
(excluding any Subsidiary existing on the Execution Date to the extent that it
does not contribute more than two percent of the consolidated net income or own
more than two percent of the consolidated assets of the Company and its
Subsidiaries at the time of any such liquidation or dissolution) will
liquidate, wind up, or dissolve itself (or suffer any liquidation or
dissolution).
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Section 5.15 Assignment. The Company will not assign or
transfer any of its Rights, duties, or obligations under any of the Loan
Papers.
ARTICLE VI
EVENTS OF DEFAULT; REMEDIES
Section 6.1 Events of Default. Any one or more of the
following events shall be "Events of Default" hereunder (which shall include by
definition the expiration of any grace period with respect thereto), whether
the same shall occur and be continuing for any reason whatsoever (and whether
such occurrence shall be voluntary or involuntary or come about or be effected
by operation of Law or otherwise):
(a) Payment of Obligation. Failure to pay any
installment of principal on any Loan when due whether at maturity, by
declaration as authorized by this Agreement, or otherwise; or failure
to pay, within 10 days after the due date thereof, any interest on any
Loan; or failure to pay, within 10 days after the due date thereof, or
if no due date therefor is herein specified within 10 days after
written demand therefor is given to the Company by the Administrative
Agent, any other amount payable by the Company hereunder or under any
of the other Loan Papers.
(b) Covenants. Default shall be made in the
observance or performance of any other of the covenants, conditions,
and agreements on the part of the Company contained herein, or in any
other Loan Papers and such default shall continue for a period of 30
days after the Administrative Agent shall have given the Company
notice thereof in writing.
(c) Debtor Relief. The Company or any Material
Subsidiary shall file a voluntary petition in bankruptcy or a petition
or answer seeking reorganization, arrangement, composition,
liquidation, receivership, or similar relief under any Debtor Relief
Law, or shall file a petition to take advantage of any Debtor Relief
Law, or shall make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts as they become
due, or shall fail generally to pay its debts as they become due, or
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shall consent to the appointment of any receiver, trustee, custodian
or liquidator of it or all or a substantial part of its Property; or a
proceeding or action shall be instituted or commenced against the
Company or any Material Subsidiary seeking an order for relief or a
reorganization, arrangement, composition, liquidation, receivership,
or similar relief under any Debtor Relief Law or seeking the
appointment, without the consent of the Company or any Material
Subsidiary, of any receiver, trustee, custodian or liquidator of it or
all or a substantial part of the Property of the Company or any
Material Subsidiary and such proceeding or action shall remain
undismissed or unstayed for a period of 90 days; or an order, decree,
or judgment for an involuntary petition adjudicating the Company or
any Subsidiary insolvent shall be entered by any court of competent
jurisdiction and shall remain undismissed or unstayed for a period of
90 days.
(d) Payment of Judgments. The Company or any of its
Material Subsidiaries fails to pay any judgment or order for the
payment of money in excess of $25,000,000 rendered against it or any
of its assets (exclusive of judgment amounts fully covered by
insurance where the insurer has admitted liability in respect thereof)
and either (i) any enforcement proceedings shall have been commenced
by any creditor upon such judgment or order or (ii) the same shall not
be discharged (or provisions shall not be made for such discharge), or
a stay of execution thereof shall not be procured, within 30 days from
the date of entry thereof and the Company or the relevant Material
Subsidiary shall not, within said period of 30 days, or such longer
period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during
such appeal.
(e) Default on Other Debt or Security. The Company or
any Material Subsidiary shall (i) fail to pay any principal of or
interest on any Debt (other than the Obligation) the principal or face
amount of which exceeds $25,000,000 when due (or, where permitted,
within any applicable grace period), whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise and such
default continues unremedied for five Business Days after such due
date or applicable grace period, or (ii) fail to perform or observe
any other provision (other than a provision that is substantially
identical to a provision in this Agreement)
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contained in any agreement securing or relating to such Debt (or any
other breach or default under such Debt agreement occurs) if the
effect of such failure to perform or observe such other provisions (or
breach or default) is to cause such Debt to become due prior to its
stated maturity; provided, however, that if any such failure, breach
or default shall be waived or cured (as evidenced by a writing from
such holder or trustee) then, to the extent of such waiver or cure,
the Event of Default hereunder by reason of such failure, breach or
default shall be deemed likewise to have been thereupon waived or
cured.
(f) ERISA. Any "Reportable Event" as such term is
defined in ERISA under any Plan, or the appointment by an appropriate
Tribunal of a trustee to administer any Plan, or the termination of
any Plan within the meaning of Title IV of ERISA, and any of the
foregoing results in a material liability to the Pension Benefit
Guaranty Corporation; or any material accumulated funding deficiency
within the meaning of ERISA exists under any Plan.
(g) Misrepresentation. Any representation or warranty
made by the Company is untrue in any material respect, or any
certificate, schedule, statement, report, notice or writing (excluding
any Appraisal, for which the Company makes no representation)
furnished by the Company to the Agents or to the Banks, or any of
them, is untrue in any material respect on the date as of which the
facts set forth are stated or certified, shall remain material at the
time of discovery and shall, if curable, remain incorrect in any
material respect after 30 days after written notice thereof to the
Company (any failure to include within any such schedule, statement,
report, notice, or writing information which failure would cause the
material included to be misleading shall be as much an untruth as a
false statement contained therein).
Section 6.2 Remedies Upon Default. If an Event of Default
specified in Section 6.1(c) occurs, the Commitments of the Banks shall
thereupon automatically terminate and the aggregate unpaid principal balance of
and accrued interest on the Obligation shall thereupon become due and payable
concurrently therewith, without any action by the Administrative Agent or any
Bank and without diligence, presentment, demand, protest, notice of protest or
intent to accelerate, or notice of any other kind, all of which are
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hereby expressly waived. Except as set forth in the preceding sentence, should
any Event of Default occur and be continuing, the Administrative Agent may, and
if requested by the Majority Banks, shall, do any one or more of the following:
(a) Acceleration. Declare (by written notice to the
Company) the entire unpaid balance of the Obligation, or any part
thereof, immediately due and payable, whereupon it shall be due and
payable, without diligence, presentment, demand, protest, notice of
protest or intent to accelerate, or other notice of any kind (except
any notice or demand specified in this Agreement), all of which are
hereby expressly waived.
(b) Termination. Terminate the Commitments by written
notice to the Company.
(c) Judgment. Reduce any claim to judgment.
(d) Rights. Exercise any and all legal and equitable
Rights available to it.
Section 6.3 Remedies in General. If any Event of Default
shall occur and be continuing, the Administrative Agent may immediately proceed
to protect and enforce all or any Rights with respect thereto contained in this
Agreement or any other Loan Papers or may enforce any other legal or equitable
Rights. Any Right may be exercised from time to time, independently or
concurrently, and as often as shall be deemed expedient. No waiver of any
Event of Default shall extend to any subsequent Event of Default.
ARTICLE VII
THE AGENTS
Section 7.1 Authorization and Action. Each Bank hereby
irrevocably appoints and authorizes (a) TCB to act as its Administrative Agent
hereunder and under each of the other Loan Papers, (b) Chase to act as its
Auction Administration Agent hereunder and under each of the other Loan Papers,
(c) B of A to act as its Documentation Agent hereunder and under each of the
other Loan Papers, and (d) NationsBank to act as Syndication Agent hereunder.
TCB consents to such appointment and agrees to perform
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the duties of the Administrative Agent hereunder and under the other Loan
Papers. Chase consents to such appointment and agrees to perform the duties of
the Auction Administration Agent hereunder and under the other Loan Papers. B
of A consents to such appointment and agrees to perform the duties of the
Documentation Agent hereunder and under the other Loan Papers. NationsBank
consents to such appointment and agrees, in consultation with the Company and
the other Agents, to select a syndicate of Banks to participate in the
Commitments. Each Bank authorizes and directs the Administrative Agent, the
Auction Administration Agent and the Documentation Agent to act on its behalf
and to exercise such powers under this Agreement as are specifically delegated
to or required of such Agent by the terms hereto, together with such powers as
are reasonably incidental thereto. As to any matters not expressly provided
for by this Agreement or the other Loan Papers (including, without limitation,
enforcement or collection of the Loans or Notes), the Administrative Agent, the
Auction Administration Agent and the Documentation Agent shall not be required
to exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Banks, and such instructions
shall be binding upon all Banks and all holders of Loans or Notes; provided,
however, that no Agent shall be required to take any action which exposes such
Agent to personal liability or which is contrary to this Agreement or
applicable Law.
Section 7.2 Agents' Reliance, Etc. None of the Agents and
none of their respective Affiliates, directors, officers, agents, or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with the Loan Papers (i) with the consent or at the request of
the Majority Banks (or the Majority Committed Banks or all the Banks, if
required) or (ii) in the absence of its or their own gross negligence or
willful misconduct (it being the express intention of the parties that the
Agents and their respective directors, officers, agents, and employees shall
have no liability for actions and omissions under this Section 7.2 resulting
from their ordinary contributory negligence). Without limitation of the
generality of the foregoing, each Agent (i) may treat the payee of each Loan or
Note as the holder thereof until such Agent receives written notice of the
assignment or transfer thereof signed by such payee and in form satisfactory to
such Agent; (ii) may consult with legal counsel (including counsel for the
Company), independent public
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accountants, and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants, or experts; (iii) makes no warranty or
representation to any Bank and shall not be responsible to any Bank for any
statements, warranties, or representations made by or on behalf of the Company
in or in connection with any Loan Paper; (iv) except as otherwise expressly
provided herein, shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants, or conditions of any
Loan Paper or to inspect the property (including the books and records) of the
Company or any of its Subsidiaries; (v) shall not be responsible to any Bank
for the due execution, legality, validity, enforceability, genuineness,
sufficiency, or value of any Loan Paper or any other instrument or document
furnished pursuant hereto or thereto; and (vi) shall incur no liability under
or in respect of any Loan Paper by acting upon any notice, consent,
certificate, or other instrument or writing (which may be by telecopier)
reasonably believed by it to be genuine and signed or sent by the proper party
or parties.
Section 7.3 Rights of Agents as Banks. With respect to their
Commitments, the Loans, if any, made by them and the Notes, if any, issued to
them, each Bank that is an Agent (including any Agent that hereafter becomes a
holder of a Loan or Note) and its Affiliates shall have the same rights and
powers under this Agreement or any other Loan Paper as any other Bank and may
exercise the same as though it were not an Agent; and the term "Bank" or
"Banks" shall, unless otherwise expressly indicated, include each Bank that is
an Agent (including any Agent that hereafter becomes a holder of a Loan or
Note), in its individual capacity. Each Bank that is an Agent (including any
Agent that hereafter becomes a holder of a Loan or Note) and its Affiliates may
accept deposits from, lend money to, act as trustee under indentures of, and
generally engage in any kind of business with, the Company, any of the
Subsidiaries and any Person who may do business with or own securities of the
Company or of the Subsidiaries, all as if such Bank were not an Agent, and
without any duty to account therefor to the Banks.
Section 7.4 Bank Credit Decision. Each Bank acknowledges and
agrees that it has, independently and without reliance upon any of the Agents
or any other Bank and based on the Current Financials and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter
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into this Agreement. Each Bank also acknowledges and agrees that it will,
independently and without reliance upon any of the Agents or any other Bank and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 7.5 AGENTS' INDEMNITY. NONE OF THE AGENTS SHALL BE
REQUIRED TO TAKE ANY ACTION HEREUNDER OR TO PROSECUTE OR DEFEND ANY SUIT IN
RESPECT OF THIS AGREEMENT OR THE LOANS OR NOTES UNLESS INDEMNIFIED TO SUCH
AGENT'S SATISFACTION BY THE BANKS AGAINST LOSS, COST, LIABILITY, AND EXPENSE.
IF ANY INDEMNITY FURNISHED TO SUCH AGENT SHALL BECOME IMPAIRED, IT MAY CALL FOR
ADDITIONAL INDEMNITY AND CEASE TO DO THE ACTS INDEMNIFIED AGAINST UNTIL SUCH
ADDITIONAL INDEMNITY IS GIVEN. IN ADDITION, THE BANKS AGREE TO INDEMNIFY EACH
AGENT OTHER THAN THE SYNDICATION AGENT (TO THE EXTENT NOT REIMBURSED BY THE
COMPANY), RATABLY ACCORDING TO THE RESPECTIVE PRINCIPAL AMOUNTS OF THE
COMMITTED LOANS THEN HELD BY EACH OF THEM (OR IF NO COMMITTED LOANS ARE AT THE
TIME OUTSTANDING, RATABLY ACCORDING TO EITHER (I) THE RESPECTIVE AMOUNTS OF
THEIR COMMITMENTS, OR (II) IF THE COMMITMENTS HAVE TERMINATED, THE RESPECTIVE
AMOUNTS OF THE COMMITMENTS IMMEDIATELY PRIOR TO SUCH TERMINATION), FROM AND
AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES, OR DISBURSEMENTS OF ANY KIND OR
NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST
SUCH AGENT IN ANY WAY RELATING TO OR ARISING OUT OF THIS AGREEMENT OR ANY
ACTION TAKEN OR OMITTED BY SUCH AGENT UNDER THIS AGREEMENT OR THE OTHER LOAN
PAPERS (INCLUDING, WITHOUT LIMITATION, ANY ACTION TAKEN OR OMITTED UNDER
ARTICLE II OF THIS AGREEMENT); PROVIDED THAT NO BANK SHALL BE LIABLE FOR ANY
PORTION OF SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, COSTS, EXPENSES, OR DISBURSEMENTS RESULTING FROM SUCH AGENT'S
FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. EACH BANK AGREES, HOWEVER, THAT
IT EXPRESSLY INTENDS, UNDER THIS SECTION 7.5, TO INDEMNIFY EACH AGENT RATABLY
AS AFORESAID FOR ALL SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES, AND DISBURSEMENTS ARISING OUT OF OR
RESULTING FROM SUCH AGENT'S ORDINARY OR CONTRIBUTORY NEGLIGENCE. WITHOUT
LIMITATION OF THE FOREGOING, EACH BANK AGREES TO REIMBURSE EACH AGENT (OTHER
THAN THE SYNDICATION AGENT) PROMPTLY UPON DEMAND FOR ITS RATABLE SHARE OF ANY
OUT-OF-POCKET EXPENSES (INCLUDING REASONABLE COUNSEL FEES) INCURRED BY SUCH
AGENT IN CONNECTION WITH THE PREPARATION, EXECUTION, ADMINISTRATION, OR
ENFORCEMENT OF, OR LEGAL ADVICE IN RESPECT OF RIGHTS OR RESPONSIBILITIES UNDER,
THIS
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AGREEMENT AND THE OTHER LOAN PAPERS TO THE EXTENT THAT SUCH AGENT IS NOT
REIMBURSED FOR SUCH EXPENSES BY THE COMPANY. THE PROVISIONS OF THIS SECTION
7.5 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND/OR THE PAYMENT OR
ASSIGNMENT OF ANY OF THE LOANS OR NOTES.
Section 7.6 Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Banks, the Auction Administration Agent, and the Company and may be removed
as Administrative Agent under this Agreement and the other Loan Papers at any
time with or without cause by the Majority Banks. Upon any such resignation or
removal, the Majority Committed Banks or, after termination of the Commitments,
the Majority Banks shall have the right, with the consent of the Company
(provided that the Company's consent shall not be required during the
continuance of a Default or an Event of Default), to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed and shall have accepted such appointment within 30 calendar days
after the retiring Administrative Agent's giving notice of resignation or the
Majority Banks' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Banks, with the consent of the
Company (provided that the Company's consent shall not be required during the
continuance of a Default or Event of Default), appoint a successor
Administrative Agent, which shall be a commercial bank organized under the Laws
of the United States of America or of any state thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder and under the other Loan Papers
by a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
and the other Loan Papers. After any retiring Administrative Agent's
resignation or removal as the Administrative Agent hereunder and under the
other Loan Papers, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement and the other Loan Papers.
Section 7.7 Successor Auction Administration Agent. The
Auction Administration Agent may resign at any time by giving written notice
thereof to the Banks, the Administrative Agent, and the Company and may be
removed as Auction Administration Agent
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under this Agreement and the other Loan Papers at any time with or without
cause by the Majority Banks. Upon any such resignation or removal, the
Majority Committed Banks or, after termination of the Commitments, the Majority
Banks shall have the right, with the consent of the Company (provided that the
Company's consent shall not be required during the continuance of a Default or
an Event of Default), to appoint a successor Auction Administration Agent. If
no successor Auction Administration Agent shall have been so appointed and
shall have accepted such appointment within 30 calendar days after the retiring
Auction Administration Agent's giving notice of resignation or the Majority
Banks' removal of the retiring Auction Administration Agent, then the retiring
Auction Administration Agent may, on behalf of the Banks, appoint a successor
Auction Administration Agent, with the consent of the Company (provided that
the Company's consent shall not be required during the continuance of a Default
or Event of Default), which shall be a commercial bank organized under the Laws
of the United States of America or of any state thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Auction Administration Agent hereunder and under the other Loan
Papers by a successor Auction Administration Agent, such successor Auction
Administration Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges, and duties of the retiring Auction Administration
Agent, and the retiring Auction Administration Agent shall be discharged from
its duties and obligations under this Agreement and the other Loan Papers.
After any retiring Auction Administration Agent's resignation or removal as the
Auction Administration Agent hereunder and under the other Loan Papers, the
provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Auction Administration
Agent under this Agreement and the other Loan Papers.
Section 7.8 Successor Documentation Agent. The Documentation
Agent may resign at any time by giving written notice thereof to the Banks, the
Administrative Agent, the Auction Administration Agent, and the Company and may
be removed as Documentation Agent under this Agreement and the other Loan
Papers at any time with or without cause by the Majority Banks. Upon any such
resignation or removal, the Majority Committed Banks or, after termination of
the Commitments, the Majority Banks shall have the right, with the consent of
the Company (provided that the Company's consent shall not be required during
the continuance of a Default or an Event of Default), to appoint a successor
Documentation
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Agent. If no successor Documentation Agent shall have been so appointed and
shall have accepted such appointment within 30 calendar days after the retiring
Documentation Agent's giving notice of resignation or the Majority Banks'
removal of the retiring Documentation Agent, then the retiring Documentation
Agent may, on behalf of the Banks, appoint a successor Documentation Agent,
with the consent of the Company (provided that the Company's consent shall not
be required during the continuance of a Default or an Event of Default), which
shall be a commercial bank organized under the Laws of the United States of
America or of any state thereof and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Documentation
Agent hereunder and under the other Loan Papers by a successor Documentation
Agent, such successor Documentation Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges, and duties of the retiring
Documentation Agent, and the retiring Documentation Agent shall be discharged
from its duties and obligations under this Agreement and the other Loan Papers.
After any retiring Documentation Agent's resignation or removal as the
Documentation Agent hereunder and under the other Loan Papers, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Documentation Agent under this Agreement and
the other Loan Papers.
Section 7.9 Notice of Default. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless the Administrative Agent shall have received
notice from a Bank or the Company referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default." If the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Banks and the Auction
Administration Agent; provided, however, if such notice is received from a
Bank, the Administrative Agent also shall give notice thereof to the Company.
The Administrative Agent shall be entitled to take action or refrain from
taking action with respect to such Default or Event of Default as provided in
Section 7.1 and Section 7.2.
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ARTICLE VIII
MISCELLANEOUS
Section 8.1 Amendments, Etc. No amendment or waiver of any
provision of this Agreement or any other Loan Paper, nor consent to any
departure by the Company herefrom or therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Majority Committed Banks,
or after termination of the Commitments, the Majority Banks (or the
Administrative Agent with the consent of the Majority Committed Banks, or after
termination of the Commitments, the Majority Banks) in all cases, and then, in
any case, such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
no amendment, waiver, or consent shall, unless in writing and signed by all the
Banks (or the Administrative Agent with the consent of all the Banks), do any
of the following: (a) waive any of the conditions specified in Section 3.1,
3.2, or 3.3 (if and to the extent that the Borrowing which is the subject of
such waiver would involve an increase in the aggregate outstanding amount of
Loans over the aggregate amount of Loans outstanding immediately prior to such
Borrowing), (b) reduce or increase the amount or alter the terms of the
Commitments of any Banks or subject any Banks to any additional obligations,
(c) reduce the principal of, or rate or amount of interest applicable to, any
Loan other than as provided in this Agreement, or any fees hereunder, (d)
postpone any date fixed for any payment of principal of, or interest on, the
Loans or any fees hereunder, (e) change this Section 8.1, or (f) change the
percentage of the Commitments or of the aggregate unpaid principal amount of
the Loans, or the number of Banks, which shall be required for the Banks or any
of them to take any action hereunder; and provided, further, that no amendment,
waiver, or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Banks required above to take such action, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Paper; and provided, further, that no amendment, waiver, or consent shall,
unless in writing and signed by the Auction Administration Agent in addition to
the Banks required to take such action, affect the rights or duties of the
Auction Administration Agent pursuant to this Agreement or any other Loan
Paper; and provided, further, that no amendment, waiver, or consent shall,
unless in writing and signed by the Documentation Agent in addition to the
Banks required to take such action, affect the rights or duties of the
Documentation Agent pursuant to this Agreement or any other Loan Paper.
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Section 8.2 Notices, Etc. Any Agent, any Bank, or the holder
of any Loan or Note giving consent or notice or making any request of the
Company provided for hereunder, shall notify each Bank, the Administrative
Agent, and the Auction Administration Agent thereof. In the event that the
holder of any Loan or Note (including any Bank) shall transfer such Loan or
Note, it shall promptly so advise the Administrative Agent and the Auction
Administration Agent which shall be entitled to assume conclusively that no
transfer of any Loan or Note has been made by any holder (including any Bank)
unless and until such Agent receives written notice to the contrary. Notices,
consents, requests, approvals, demands, and other communications (collectively
"Communications") provided for herein shall be in writing (including telecopy
Communications) and mailed, telecopied or delivered:
(a) If to the Company, to it at:
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇, Treasurer
(b) If to the Administrative Agent, to it at:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Dallas Corporate Department
(c) If to the Auction Administration Agent, to it at:
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Loan and Agency Services Group
(d) If to any Bank or any other Agent, as specified on
Schedule I hereto or, in the case of any party, such other address or
telecopy number as such party may hereafter specify for such purpose
by notice to the other parties. All Communications shall, when
mailed, telecopied or delivered, be effective and shall be deemed to
have been duly given when
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sent by telecopier to any party or the telecopier number as set forth
herein or on the signature pages hereof (or other telecopy number
designated by such party in a written notice to the other parties
hereto), or five days after being mailed to the address as set forth
herein (or such other address designated by such party in a written
notice to the other parties hereto) respectively, or when delivered to
such address; provided, however, Communications to any Agent pursuant
to Article II or Article VII shall not be effective until received by
such Agent.
Section 8.3 No Waiver; Remedies. No failure on the part of
any Bank or any Agent to exercise, and no delay in exercising, any Right
hereunder or under any other Loan Paper shall operate as a waiver thereof; nor
shall any single or partial exercise of any such Right, or any abandonment or
discontinuance of any steps to enforce such Right, preclude any other or
further exercise thereof or the exercise of any other Right. No notice to or
demand on the Company in any case shall entitle the Company to any other or
further notice or demand in similar or other circumstances. The Rights herein
provided are cumulative and not exclusive of any Rights provided by Law.
Section 8.4 Costs, Expenses and Taxes. The Company agrees to
pay or reimburse the Agents for paying: (i) all reasonable costs and expenses
of the Agents in connection with (A) the preparation, execution, delivery, and
administration of this Agreement and the other Loan Papers, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agents with respect thereto and with respect to advising the Agents as to their
respective Rights and responsibilities under this Agreement and the other Loan
Papers, and (B) any amendment, modification, supplement, or waiver of any of
the terms of this Agreement, and (ii) all reasonable costs and expenses of the
Banks and the Agents (including reasonable counsel's fees, and including
reasonable allocated in-house counsel fees for any Bank or any Agent) in
connection with the enforcement of this Agreement and the other Loan Papers.
In addition, the Company shall pay any and all Taxes payable or determined to
be payable in connection with the execution and delivery of this Agreement and
the other Loan Papers, and agrees to save the Agents and each Bank harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying or omitting to pay such Taxes, if any, which may be payable or
determined to be payable in connection with the
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execution and delivery of this Agreement or any other Loan Paper. The
obligations of the Company under this Section 8.4 shall survive the termination
of this Agreement and/or repayment of the Loans.
SECTION 8.5 INDEMNITY. THE COMPANY AGREES TO INDEMNIFY AND
HOLD HARMLESS THE AGENTS AND THE BANKS AND EACH OF THEIR RESPECTIVE AFFILIATES,
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS AND REPRESENTATIVES AGAINST
ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, CLAIMS, COSTS, DEFICIENCIES, EXPENSES, AND DISBURSEMENTS OF
ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY OR ASSERTED
AGAINST ANY AGENT, ANY BANK, OR ANY OF THEIR RESPECTIVE AFFILIATES, OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR OTHER REPRESENTATIVES IN ANY WAY
RELATING TO OR ARISING OUT OF THE LOAN PAPERS, ANY TRANSACTION RELATED HERETO,
OR ANY ACT, OMISSION, OR TRANSACTION OF THE COMPANY, ITS SUBSIDIARIES, AND
AFFILIATES, OR ANY OF THEIR EMPLOYEES, OFFICERS, DIRECTORS OR OTHER
REPRESENTATIVES, TO THE EXTENT THAT ANY OF THE SAME RESULTS, DIRECTLY OR
INDIRECTLY, FROM ANY CLAIMS MADE OR ACTIONS, SUITS, OR PROCEEDINGS COMMENCED BY
OR ON BEHALF OF ANY PERSON OTHER THAN AN AGENT OR A BANK. THE OBLIGATION OF
THE COMPANY UNDER THIS SECTION SHALL CONTINUE FOR A PERIOD OF ONE YEAR AFTER
PAYMENT OF THE OBLIGATION AND TERMINATION OF ANY OR ALL LOAN PAPERS, AND SHALL
NOT BE RELIEVED BY ANY CLAIM OR ALLEGATION OF NEGLIGENCE BY ANY AGENT OR ANY
BANK; PROVIDED, HOWEVER, THAT ALTHOUGH EACH INDEMNIFIED PARTY SHALL HAVE THE
RIGHT TO BE INDEMNIFIED FROM ITS OWN ORDINARY NEGLIGENCE, NO INDEMNIFIED PARTY
SHALL HAVE THE RIGHT TO BE INDEMNIFIED HEREUNDER FOR ITS OWN FRAUD, GROSS
NEGLIGENCE, OR WILLFUL MISCONDUCT.
Section 8.6 Right of Setoff. If any Event of Default shall
have occurred and be continuing, each Bank is hereby authorized at any time
from time to time, to the fullest extent permitted by Law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Bank to or
for the credit or the account of the Company against any and all obligations of
the Company now or hereafter existing under this Agreement and the Loans held
by such Bank, irrespective of whether or not such Bank shall have made any
demand under this Agreement or any Note and although such obligations may be
unmatured. Each Bank agrees promptly to notify the Company and the
Administrative Agent after any such setoff and application made by such Bank,
but the failure to give such notice shall not affect the validity of such
setoff
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and application. The Rights of each Bank under this Section 8.6 are in
addition to the Rights and remedies (including, without limitation, other
Rights of setoff) which such Bank may have.
SECTION 8.7 GOVERNING LAW; VENUE; SERVICE OF process.
(a) THIS AGREEMENT AND ALL OTHER LOAN PAPERS SHALL BE
DEEMED TO BE CONTRACTS AND AGREEMENTS EXECUTED BY THE COMPANY, THE
AGENTS, AND THE BANKS UNDER THE LAWS OF THE ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF SAID STATE AND OF THE UNITED
STATES. Without limitation of the foregoing, nothing in this
Agreement or in any Note shall be deemed to constitute a waiver of any
Rights which any Bank may have under applicable federal legislation
relating to the amount of interest which such Bank may contract for,
take, receive, or charge in respect of any Loans, including any Right
to take, receive, reserve, and charge interest at the rate allowed by
the Law of the states where such Bank is located. The provisions of
Chapter 15 of Article 5069 of the Texas Revised Civil Statutes do not
apply to this Agreement or any Note issued hereunder.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY
ACTION OR PROCEEDING AGAINST THE COMPANY UNDER OR IN CONNECTION WITH
ANY OF THE LOAN PAPERS MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT IN
DALLAS COUNTY, TEXAS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
COMPANY HEREBY IRREVOCABLY (A) SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURTS, AND (B) WAIVES ANY OBJECTION IT MAY NOW
OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT OR THAT ANY SUCH COURT IS AN INCONVENIENT
FORUM. THE COMPANY AGREES THAT SERVICE OF PROCESS UPON IT MAY BE MADE
BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, AT ITS
ADDRESS SPECIFIED OR DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 8.2. NOTHING HEREIN OR IN ANY OF THE OTHER LOAN PAPERS SHALL
AFFECT THE RIGHT OF ANY AGENT OR ANY BANK TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF ANY AGENT OR
ANY BANK TO BRING ANY ACTION OR PROCEEDING AGAINST THE COMPANY OR WITH
RESPECT TO ANY OF ITS PROPERTY IN COURTS IN OTHER JURISDICTIONS. ANY
ACTION OR PROCEEDING BY THE COMPANY AGAINST ANY AGENT OR ANY BANK
SHALL BE BROUGHT ONLY IN A COURT LOCATED IN DALLAS COUNTY, TEXAS.
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Section 8.8 Usury Not Intended. The Company and the Banks
intend to strictly comply with all applicable Laws, including Applicable Laws.
Accordingly, the provisions of this Section 8.8 shall govern and control over
every other provision of this Agreement and any Note, whenever executed, which
conflicts with this Section 8.8, even if such provision declares that it
controls (unless such provision expressly identifies and refers to this Section
8.8 and specifically states that it will control over this Section 8.8). As
used in this Section 8.8, the term "interest" includes the aggregate of all
charges which constitute interest under Applicable Laws, provided that, to the
maximum extent permitted by Applicable Laws, (a) any non-principal payment
shall be characterized as an expense or fee or something other than
compensation for the use, forbearance, or detention of money and not as
interest, and (b) all interest at any time contracted for, reserved, charged,
or received shall be amortized, prorated, allocated, and spread, in equal or
unequal parts throughout the entire contemplated term of the Borrowings so that
interest for the entire term does not exceed the maximum rate permitted by
Applicable Laws. In no event shall the Company or any other Person be
obligated to pay, or any Bank have any right or privilege to contract for,
reserve, receive, retain, or charge (a) any interest in excess of the maximum
amount of nonusurious interest permitted under Applicable Laws, or (b) total
interest in excess of the amount which such Bank could lawfully have contracted
for, reserved, received, retained, or charged had the interest been calculated
for the full term of the Borrowings at the Highest Lawful Rate. On each day,
if any, that the interest rate (the "Stated Rate") called for under this
Agreement or under any Note or other related document exceeds the Highest
Lawful Rate, the rate at which interest shall accrue shall automatically be
fixed by operation of this sentence at the Highest Lawful Rate for that day,
and shall remain fixed at the Highest Lawful Rate (or at any time no Highest
Lawful Rate shall exist, at the Agreed Maximum Rate) for each day thereafter
until the total amount of interest accrued equals the total amount of interest
which would have accrued if there were no such ceiling rate as is imposed by
this sentence. Thereafter, interest shall accrue at the Stated Rate unless and
until the Stated Rate again exceeds the Highest Lawful Rate when the provisions
of the immediately preceding sentence shall again automatically operate to
limit the interest accrual rate. The daily interest rates to be used in
calculating interest at the Highest Lawful Rate shall be determined by dividing
the applicable Highest Lawful Rate per annum by the number of days in the
calendar
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year for which such calculation is being made. None of the terms and
provisions contained in this Agreement, any Note, or any other Loan Paper which
directly or indirectly relate to interest shall ever be construed without
reference to this Section 8.8 or construed to create a contract to pay for the
use, forbearance, or detention of money at an interest rate in excess of the
Highest Lawful Rate. If the term of any Loan is shortened by reason of
acceleration of maturity as a result of any Event of Default or other cause, or
by reason of any required or permitted prepayment, and if for that (or any
other) reason any Bank at any time (including but not limited to the stated
maturity of any Borrowing) is owed or receives (and/or has received) interest
in excess of interest calculated at the Highest Lawful Rate, then and in any
such event all of any such excess interest shall be cancelled automatically as
of the date of such acceleration, prepayment, or other event which produces the
excess, and, if such excess interest has been paid to a Bank, it shall be
credited pro tanto against the then-outstanding principal balance of the
Company's obligations to such Bank, effective as of the date or dates when the
event occurs which causes it to be excess interest, until such excess is
exhausted or all of such principal has been fully paid and satisfied, whichever
occurs first, and any remaining balance of such excess shall be promptly
refunded to its payor.
Section 8.9 Survival of Representations and Warranties. All
representations and warranties contained herein or made in writing by the
Company in connection herewith shall survive the execution and delivery of this
Agreement and the other Loan Papers, and no investigation by any Agent or any
Bank or any closing shall affect the representations and warranties or the
Right of any Agent or any Bank to rely upon them.
Section 8.10 Binding Effect. This Agreement shall become
effective when it shall have been executed by the Company, the Agents, and each
Bank and thereafter shall be binding upon and inure to the benefit of the
Company (subject to the provisions of Section 8.11), the Agents, each Bank and
their respective successors and assigns.
Section 8.11 Successors and Assigns; Participations.
(a) Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the
successors and permitted assigns of such party; and all
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covenants, promises, agreements, representations and warranties by or
on behalf of the Company, the Agents or the Banks that are contained
in this Agreement shall bind and inure to the benefit of their
respective successors and assigns. The Company may not assign or
transfer any its rights or obligations hereunder without the prior
written consent of all of the Banks.
(b) Each Bank may without the consent of the Company
sell participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment and the Loans
owing to it and any Note or Notes held by it); provided, however, that
(i) such Bank's obligations under this Agreement shall remain
unchanged, (ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such
Bank shall remain the holder of its Loans and Notes (if any) for all
purposes of this Agreement, (iv) the participating banks or other
entities shall be entitled to the cost protection provisions contained
in Article IIand Section 8.4, but only to the extent that such
protection would have been available to such Bank, calculated as if no
such participations had been sold, and the indemnity protection
provisions contained in Section 8.5, (v) the Company, the Agents, and
the other Banks shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this
Agreement, and (vi) such Bank shall not sell a participation that
conveys to the participant the right to vote or give or withhold
consents under this Agreement or any other Loan Papers, other than the
right to vote upon or consent to (y) amendments, modifications, or
waivers with respect to any fees payable hereunder (including the
dates fixed for the payment of any such fees) or the amount of
principal or the rate of interest payable on, or the dates fixed for
any payment of principal of or interest on, the Loans and (z) any
extension of the Termination Date.
(c) Each Bank may assign, with the prior written
consent of the Company (which consent shall not be unreasonably
withheld and shall not be required after the occurrence or during the
continuance of a Default or Event of Default) and the Administrative
Agent, to one or more Eligible Assignees, all or a portion of its
interests, rights, and obligations
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84
under this Agreement (including, without limitation, all or a portion
of its Commitment and the same portion of the Committed Loans at the
time owing to it; provided, however, that (i) each Bank's Commitment
(including Loans owing to it) shall not be less than $10,000,000,
minus reductions pursuant to Section 2.6(a), (ii) each such assignment
shall be of a constant, and not a varying, percentage of all the
assigning Bank's rights and obligations under this Agreement (other
than any Competitive Loans, any Competitive Notes and any right to
make Competitive Loans), (iii) the assignee thereof shall deliver to
the Company and the Administrative Agent any Internal Revenue Service
forms required by Section 2.19, and (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for
its acceptance and recording in the Register (as defined below), an
Assignment and Acceptance substantially in the form of Exhibit H
hereto (an "Assignment and Acceptance"), together with a properly
completed Administration Questionnaire, any Note or Notes subject to
such assignment and a processing and recordation fee of $2,000 (or
such lesser amount as shall be acceptable to the Administrative
Agent); provided, however, no such fee shall be required in the case
of any assignment requested by the Company pursuant to Article II of
this Agreement. Upon such execution, delivery, acceptance, and
recording, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five
Business Days after the execution thereof (unless a shorter period
shall be agreed to by the Company, the Administrative Agent, and the
assignor Bank), (x) the Eligible Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Bank hereunder and under the
other Loan Papers and (y) the assignor Bank thereunder shall, to the
extent provided in such Assignment and Acceptance, be released from
its obligations under this Agreement and the other Loan Papers (and,
in the case of an Assignment and Acceptance covering all of the
remaining portion of an assigning Bank's rights and obligations under
this Agreement and the other Loan Papers, such Bank shall cease to be
a party hereto and thereto).
(d) By executing and delivering an Assignment and
Acceptance, the Bank assignor thereunder and the Eligible Assignee
confirm to and agree with each other and the other
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85
parties hereto as follows: (i) other than the representation and
warranty that it is a legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim, such Bank
assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties, or
representations made in or in connection with this Agreement or any
other Loan Paper or the execution, legality, validity, enforceability,
genuineness, sufficiency, or value of this Agreement, any other Loan
Paper or any other instrument or document furnished pursuant hereto;
(ii) such Bank assignor makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
the Company or the performance or observance of its respective
obligations under this Agreement, any other Loan Paper or any other
instrument or document furnished pursuant hereto or thereto; (iii)
such Eligible Assignee confirms that it has received a copy of this
Agreement together with copies of financial information and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such Eligible Assignee will, independently and
without reliance upon the Agents, such Bank assignor, or any other
Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such Eligible
Assignee appoints and authorizes the Administrative Agent, the Auction
Administration Agent and the Documentation Agent to take such action
on behalf of such Eligible Assignee and to exercise such powers under
this Agreement and the other Loan Papers as are delegated to each such
Agent by the terms hereof and thereof, together with such powers as
are reasonably incidental thereto; (vi) such Eligible Assignee agrees
that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be
performed by it as a Bank; and (vii) such Eligible Assignee confirms
that it is an Eligible Assignee as defined above.
(e) The Administrative Agent shall maintain at its
office a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Banks
and the Commitment of, and principal amount of the Loan owing to, each
Bank from time to time (the "Register"). The entries in the Register
shall be conclusive,
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86
in the absence of manifest error, and the Company, the Agents, and the
Banks may treat each Person whose name is recorded in the Register as
a Bank hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Company, any Bank, the
Administrative Agent, or the Auction Administration Agent at any
reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank and an Eligible Assignee together with
any Note or Notes subject to such assignment and the written consent
to such assignment, the Administrative Agent shall, if such Assignment
and Acceptance has been completed and is substantially in the form of
Exhibit H hereto, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register, and (iii)
give prompt notice thereof to the Banks, the Administrative Agent, the
Auction Administration Agent, and the Company. Within five Business
Days after receipt of such notice, the Company, at its own expense,
shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note or Notes, if any, (x) a new Committed Note or
Committed Notes to the order of such Eligible Assignee in an amount
equal to its portion of the Commitment assumed by it pursuant to such
Assignment and Acceptance, (y) if the assigning Bank has retained its
Competitive Note, a new Competitive Note to the order of the Eligible
Assignee, and (z) if the assigning Bank has retained any Commitment
hereunder, new Committed Notes to the order of the assigning Bank in
an amount equal to the Commitment retained by it hereunder. Such new
Committed Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Committed Notes. Such
new Committed Notes and Competitive Notes shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit D-1 or D-2 as applicable, hereto.
Cancelled Notes shall be returned to the Company.
(g) Notwithstanding any other provision herein, any
Bank may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 8.11,
disclose to the assignee or participant or proposed assignee or
participant any information relating to the Company and its
Subsidiaries furnished to such Bank by or
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on behalf of the Company; provided, that prior to any such disclosure,
each such assignee or participant or proposed assignee or participant
shall agree for the benefit of the Company to preserve the
confidentiality of any confidential information relating to the
Company received from such Bank.
(h) Notwithstanding any other provision set forth in
this Agreement, any Bank may at any time create a security interest in
all or any portion of its Rights under this Agreement (including,
without limitation, the Loans owing to it and any Notes held by it) in
favor of any Federal Reserve Bank in accordance with Regulation A of
the Board.
Section 8.12 Independence of Covenants. All covenants
contained in this Agreement shall be given independent effect so that if a
particular action or condition is not permitted by any such covenants, the fact
that such action or condition would be permitted by an exception to, or
otherwise be within the limitations of, another covenant shall not avoid the
occurrence of a Default or Event of Default if such action is taken or
condition exists.
Section 8.13 Severability. Should any clause, sentence,
paragraph, or Section of this Agreement be judicially declared to be invalid,
unenforceable, or void, such decision will not have the effect of invalidating
or voiding the remainder of this Agreement, and the parties hereto agree that
the part or parts of this Agreement so held to be invalid, unenforceable, or
void will be deemed to have been stricken herefrom and the remainder will have
the same force and effectiveness as if such part or parts had never been
included herein.
Section 8.14 Entire Agreement. THIS AGREEMENT, THE FEE
LETTERS BETWEEN THE COMPANY AND THE RESPECTIVE AGENTS, AND THE OTHER LOAN
PAPERS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO AND SUPERSEDE
ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF, AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES. Without in any way limiting the foregoing, this Agreement supersedes
that certain Competitive Advance and Revolving Credit Facility Agreement dated
as of December 14, 1990, as amended, among the Company and the Banks and Agents
named therein, and the commitments of such Banks thereunder are hereby
terminated.
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Section 8.15 Descriptive Headings. The section headings
appearing in this Agreement have been inserted for convenience only and shall
be given no substantive meaning or significance whatever in construing the
terms and provisions of this Agreement.
Section 8.16 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
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Section 8.17 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF THE COMPANY, THE AGENTS AND THE BANKS
HEREBY IRREVOCABLY AND EXPRESSLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN PAPERS OR THE
TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF ANY AGENT OR ANY BANK IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
SOUTHWEST AIRLINES CO.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Title: Treasurer
-------------------------------
$80,000,000 TEXAS COMMERCE BANK NATIONAL ASSOCIATION, as
a Bank and as Administrative Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: Senior Vice President
-------------------------------
THE CHASE MANHATTAN BANK,
as Auction Administration Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
-------------------------------
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$80,000,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank and
as Documentation Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Managing Director
-------------------------------
$80,000,000 NATIONSBANK OF TEXAS, N.A.,
as a Bank and as Syndication Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Title: Senior Vice President
-------------------------------
$50,000,000 ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: Vice President
-------------------------------
By: /s/ Lukas van der ▇▇▇▇
------------------------------------------
Name: Lukas van der ▇▇▇▇
--------------------------------
Title: Vice President
-------------------------------
$50,000,000 ROYAL BANK OF CANADA
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: Industry Manager
-------------------------------
$40,000,000 THE MITSUBISHI TRUST AND BANKING
CORPORATION, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: Senior Vice President
-------------------------------
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$40,000,000 BANK ONE, TEXAS, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Title: Vice President
-------------------------------
$30,000,000 FIRST SECURITY BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: Vice President
-------------------------------
$25,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Title: Vice President
-------------------------------
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SCHEDULE I
SOUTHWEST AIRLINES CO.
Competitive Advance and
Revolving Credit Agreement
===========================================================================================================================
NOTICE
NAME LENDING OFFICE*** INFORMATION
---------------------------------------------------------------------------------------------------------------------------
TEXAS COMMERCE Texas Commerce Bank Texas Commerce Bank
BANK NATIONAL National Association National Association
ASSOCIATION ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇▇▇ Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
BANK OF AMERICA Bank of America National Bank of America National
NATIONAL TRUST AND SAVINGS Trust and Savings Association Trust and Savings Association
ASSOCIATION North American Division North American Division
Airlines Group 5770 Airlines Group 5770
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy (▇▇▇) ▇▇▇-▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
NATIONSBANK OF TEXAS, N.A. NationsBank of Texas, N.A. NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy (▇▇▇) ▇▇▇-▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
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---------------------------------------------------------------------------------------------------------------------------
ABN AMRO BANK N.V. ABN AMRO Bank N.V. ABN AMRO Bank N.V.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy (▇▇▇) ▇▇▇-▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: Lukas van der Hoef
---------------------------------------------------------------------------------------------------------------------------
ROYAL BANK OF CANADA Royal Bank of Canada Royal Bank of Canada
Grand Cayman (North America No. 1) Grand Cayman (North America No. 1)
Branch Branch
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇/▇ ▇▇▇ ▇▇▇▇ Branch
Financial Square, 23rd Floor Financial Square, ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Manager, Credit
Administration
Royal Bank of Canada
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy (▇▇▇) ▇▇▇-▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
THE MITSUBISHI TRUST AND BANKING The Mitsubishi Trust and Banking The Mitsubishi Trust and Banking
CORPORATION, NEW YORK BRANCH Corporation, New York Branch Corporation, New York Branch
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy (▇▇▇) ▇▇▇-▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
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---------------------------------------------------------------------------------------------------------------------------
BANK ▇▇▇, ▇▇▇▇▇, ▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇▇▇, N.A. Bank One, Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
FIRST SECURITY BANK, N.A. First Security Bank, N.A. First Security Bank, N.A.
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ 15 East ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
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WACHOVIA BANK OF GEORGIA, N.A. Wachovia Bank of Georgia, N.A. Wachovia Bank of Georgia, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇. ▇▇-▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇. ▇▇-▇▇▇▇▇
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Attn.: ▇▇▇▇ ▇. ▇▇▇▇
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95
SCHEDULE II
SOUTHWEST AIRLINES CO.
Competitive Advance and
Revolving Credit Agreement
INITIAL SCHEDULE II LISTING POOL ASSETS
SHALL BE DELIVERED PRIOR TO THE ASSET POOL DATE
-90-