Exhibit 10.1
$575,000,000 COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT
Among
SOUTHWEST AIRLINES CO.,
THE BANKS PARTY HERETO,
CITICORP USA INC.,
as Syndication Agent,
BARCLAYS BANK PLC, SUNTRUST BANK and UBS AG, STAMFORD BRANCH
as Documentation Agents,
and
JPMORGAN CHASE BANK,
as Administrative Agent
As of April 20, 2004
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
CITIGROUP GLOBAL MARKETS INC.,
as Co-Lead Arrangers and Joint Bookrunners
Table of Contents
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1
Section 1.1 Certain Defined Terms 1
Section 1.2 Computation of Time Periods 12
ARTICLE II LOANS 12
Section 2.1 Commitments 12
Section 2.2 Competitive Bid Procedure 13
Section 2.3 Committed Borrowing Procedure 15
Section 2.4 Refinancings; Conversions 15
Section 2.5 Fees 16
Section 2.6 Termination and Reduction of Commitments 17
Section 2.7 Loans 17
Section 2.8 Loan Accounts 18
Section 2.9 Interest on Loans 18
Section 2.10 Interest on Overdue Amounts 19
Section 2.11 Alternate Rate of Interest 19
Section 2.12 Prepayment of Loans 19
Section 2.13 Reserve Requirements; Change in Circumstances 20
Section 2.14 Change in Legality 22
Section 2.15 Indemnity 22
Section 2.16 Pro Rata Treatment 23
Section 2.17 Sharing of Setoffs 23
Section 2.18 Payments 24
Section 2.19 Tax Forms 25
Section 2.20 Calculation of LIBO Rates 25
Section 2.21 Booking Loans 25
Section 2.22 Quotation of Rates 25
ARTICLE III LETTERS OF CREDIT 25
Section 3.1 L/C Commitment 25
Section 3.2 Procedure for Issuance of Letter of Credit 26
Section 3.3 Fees and Other Charges 26
Section 3.4 L/C Participations 26
Section 3.5 Reimbursement Obligation of the Company 27
Section 3.6 Obligations Absolute 28
Section 3.7 Letter of Credit Payments 28
Section 3.8 Applications 28
ARTICLE IV CONDITIONS OF LENDING 28
Section 4.1 Conditions Precedent 28
Section 4.2 Conditions Precedent to Each Committed Borrowing 29
Section 4.3 Conditions Precedent to Each
Competitive Borrowing 30
Section 4.4 Conditions Precedent to Each Letter
of Credit Issuance 30
Section 4.5 Legal Details 30
ARTICLE V REPRESENTATIONS AND WARRANTIES 31
Section 5.1 Organization, Authority and Qualifications 31
Section 5.2 Financial Statements 31
Section 5.3 Compliance with Agreement and Laws 31
Section 5.4 Authorization; No Breach; and Valid Agreements 31
Section 5.5 Litigation and Judgments 32
Section 5.6 Ownership of Properties 32
Section 5.7 Taxes 32
Section 5.8 Approvals Required 32
Section 5.9 Business; Status as Air Carrier 32
Section 5.10 ERISA Compliance 32
Section 5.11 Insurance 32
Section 5.12 Purpose of Loan 32
Section 5.13 Investment Company Act 32
Section 5.14 General 33
ARTICLE VI COVENANTS 33
Section 6.1 Performance of Obligations 33
Section 6.2 Compliance with Laws 33
Section 6.3 Maintenance of Existence Licenses and
Franchises: Compliance With Agreements 33
Section 6.4 Maintenance of Properties 33
Section 6.5 Maintenance of Books and Records 34
Section 6.6 Inspection 34
Section 6.7 Insurance 34
Section 6.8 Appraisals 34
Section 6.9 Coverage Ratio 34
Section 6.10 Reporting Requirements 34
Section 6.11 Use of Proceeds 35
Section 6.12 Pool Assets 36
Section 6.13 Restrictions on Liens 37
Section 6.14 Mergers and Dissolutions 37
Section 6.15 Assignment 37
ARTICLE VII EVENTS OF DEFAULT; REMEDIES 37
Section 7.1 Events of Default 37
Section 7.2 Remedies Upon Default 39
Section 7.3 Remedies in General 39
ARTICLE VIII THE AGENTS 40
Section 8.1 Authorization and Action 40
Section 8.2 Agents' Reliance, Etc. 40
Section 8.3 Rights of Agents as Banks 40
Section 8.4 Bank Credit Decision 41
Section 8.5 Agents' Indemnity 41
Section 8.6 Successor Administrative Agent 41
Section 8.7 Notice of Default 42
Section 8.8 Documentation Agents and Syndication Agent 42
ARTICLE IX MISCELLANEOUS 42
Section 9.1 Amendments, Etc 42
Section 9.2 Notices, Etc. 43
Section 9.3 No Waiver; Remedies 43
Section 9.4 Costs, Expenses and Taxes 44
Section 9.5 Indemnity 44
Section 9.6 Right of Setoff 44
SECTION 9.7 GOVERNING LAW 44
Section 9.8 Submission To Jurisdiction; Waivers 45
Section 9.9 Survival of Representations and Warranties 45
Section 9.10 Binding Effect 45
Section 9.11 Successors and Assigns; Participations 45
Section 9.12 Independence of Covenants 48
Section 9.13 Severability 48
Section 9.14 Integration 48
Section 9.15 Descriptive Headings 48
Section 9.16 Execution in Counterparts 48
Section 9.17 WAIVERS OF JURY TRIAL 48
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
Form of Company's Internal Counsel Opinion Exhibit E-1
Form of Company's Outside Counsel Opinion Exhibit E-2
Form of Agents' Counsel Opinion Exhibit E-3
Form of Financial Report Certificate Exhibit F
Form of Assignment and Acceptance Exhibit G
Form of Appraisal Exhibit H
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT, dated as
of April 20, 2004, among SOUTHWEST AIRLINES CO. (the "Company"), the Banks,
JPMORGAN CHASE BANK, as administrative agent for the Banks (in such capacity,
the "Administrative Agent"), CITICORP USA INC., as syndication agent for the
Banks (in such capacity, the "Syndication Agent"), and BARCLAYS BANK PLC,
SUNTRUST BANK and UBS AG, STAMFORD BRANCH as documentation agents for the
Banks (collectively, in such capacity, the "Documentation Agents").
The Company has requested the Banks to extend credit to the Company in
order to enable it to borrow on a revolving credit basis and to obtain
letters of credit on and after the Effective Date and at any time and from
time to time prior to the Termination Date (each as herein defined) in an
aggregate principal amount not in excess of $575,000,000 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 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 in
a form satisfactory to the Administrative Agent, 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 Syndication Agent and the
Documentation Agents.
"Agreed Maximum Rate" means, for any date, 2% per annum above the
interest rate then applicable to Alternate Base Loans.
"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.
"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 day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a)
the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall
mean the rate of interest per annum publicly announced from time to time by
JPMorgan Chase Bank as its prime rate in effect at its principal office in
New York City (the Prime Rate not being intended to be the lowest rate of
interest charged by JPMorgan Chase Bank in connection with extensions of
credit to debtors). Any change in the Alternate Base Rate due to a change in
the Prime Rate or the Federal Funds Effective Rate shall be effective as of
the opening of business on the effective day of such change in the Prime Rate
or the Federal Funds Effective Rate, respectively.
"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 Alternate Base
Loans or 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 Applicable Margin for
Public Debt Rating Eurodollar Loans that are Alternate Base Loans that
S&P/▇▇▇▇▇'▇ Committed Loans are Committed Loans
A/A2 or better .40% .00%
A-/A3 .50% .00%
BBB+/Baa1 .60% .00%
BBB/Baa2 .70% .00%
BBB-/Baa3 1.00% .00%
BB+/Ba1 or below 1.30% .30%
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.
The Applicable Margin shall be increased by 0.125% at any time when the sum
of the aggregate principal amount of the Loans then outstanding and of the
L/C Obligations exceeds 50% of the Total Commitment; provided, that such
increase shall apply to Alternate Base Loans only if pricing set forth in
either of the two lowest rows in the above pricing grid is applicable.
"Application" means an application, in such form as the Issuing Bank
may specify from time to time, requesting the Issuing Bank to open a Letter
of Credit. Each Issuing Bank shall furnish to the Company a form of
Application satisfactory to it promptly following the request therefor by the
Company.
"Appraisal" means a "desk-top" appraisal report addressed to the
Administrative Agent and substantially in the form of Exhibit H, 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 Effective Date, (b) each
anniversary of the Effective Date and (c) each date of replacement, removal
or addition of any Pool Asset if such Pool Asset is an airframe or an
airframe and one or more engines installed thereon.
"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.
"Assignment and Acceptance" is defined in Section 9.11(c).
"Auditors" means independent certified public accountants of recognized
national standing selected by the Company.
"Banks" means those banks and other financial institutions signatory
hereto and other banks or financial institutions which from time to time
become party hereto pursuant to the provisions of this Agreement.
"Board" means the Board of Governors of the Federal Reserve System of
the United States.
"Borrowing" means a Competitive Borrowing or a Committed Borrowing.
"Borrowing Date" means the Business Day on which the proceeds of any
Borrowing are to be made available to the Company.
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banks in
New York City are authorized or required by law
to close, provided, that with respect to notices and determinations in
connection with, and payments of principal and interest on, Eurodollar Loans,
such day is also a day for trading in London, England by and between banks in
dollar deposits in the Eurodollar Interbank Market.
"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 Total Commitment on such date (or, after
termination of the Commitments, the sum of the aggregate outstanding amount
of Loans and L/C Obligations).
"Commitment" means, with respect to each Bank, the obligation of such
Bank to make Loans and to issue or participate in Letters of Credit in the
aggregate principal and/or face 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 7.2, 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 9.11(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.
"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 9.2.
"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-l.
"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.
"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-l 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.
"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 6.10(a) and Section 6.10(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
cash dividends paid by the Company, to (ii) current maturities of
Consolidated Long-Term Debt or any other Debt due within a year of the date
of determination, 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, 2003.
"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 Agents" 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 and the Administrative Agent.
"Effective Date" means the date on which the conditions set forth in
Section 4.1 are first met, which date is April 20, 2004.
"Eligible Affiliate Assignee" means, with respect to any Bank, an
Affiliate thereof that is: (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; or (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 and
the Administrative 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 VII,
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.
"Existing Credit Agreements" means the 364-Day and 3-Year
Competitive
Advance and Revolving Credit Facility Agreements, each dated as of April 23,
2002, among the Company, the banks party thereto and the agents referred to
therein.
"Facility Fee" is defined in Section 2.5.
"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/▇▇▇▇▇'▇ Percentage
A/A2 or better .10%
A-/A3 .125%
BBB+/Baa1 .15%
BBB/Baa2 .175%
BBB-/Baa3 .25%
BB+/Ba1 or below .325%
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" means, for any day, 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
next succeeding Business Day by the Federal Reserve Bank of
New York, or, if
such rate is not so published for any day that is a Business Day, the average
of the quotations for the day of such transactions received by JPMorgan Chase
Bank from three federal funds brokers of recognized standing selected by it.
"Financial Report Certificate" means a certificate substantially in the
form of Exhibit F.
"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."
"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 or six, or, if made available by the
Majority Banks, 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; 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.
"Issuing Bank" means JPMorgan Chase Bank and any other Bank that has
agreed in writing to act as an "Issuing Bank" hereunder. Each reference
herein to "the Issuing Bank" shall be deemed to be a reference to the
relevant Issuing Bank.
"Laws" means all applicable statutes, laws, treaties, ordinances,
rules, regulations, orders, writs, injunctions, decrees, judgments, or
opinions of any Tribunal.
"L/C Commitment" means $70,000,000.
"L/C Obligations" means at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit, if any, and (b) the aggregate amount of drawings under
Letters of Credit that have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Banks
other than the Issuing Bank.
"Letters of Credit" is defined in Section 3.1(a).
"LIBO Rate" means, for any Eurodollar Loan for any Interest Period
therefor, the rate equal to the annual rate of interest shown on the Telerate
Screen (Page 3750) for a period equal to such Interest Period or, if the
Telerate Screen is not available, the annual rate of interest at which dollar
deposits approximately equal in principal amount to JPMorgan Chase Bank'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 JPMorgan Chase Bank'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
JPMorgan Chase Bank in London, England (or if JPMorgan Chase Bank does not at
the time any such determination is to be made maintain an office in London,
England, the principal office of any Affiliate of JPMorgan Chase Bank 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 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. For avoidance of doubt, the filing
of a Uniform Commercial Code financing statement by a Person that is not
entitled or authorized in accordance with the applicable Uniform Commercial
Code to file such financing statement shall not, in and of itself, constitute
a Lien.
"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 Based Accrual" is defined in Section 2.5.
"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.
"Loan Payment Date" is defined in Section 2.5.
"Majority Banks" means, at any time, Banks having Revolving Credit
Exposures (excluding Competitive Loans) and unused Commitments representing
more than 50% of the sum of the total Revolving Credit Exposures (excluding
Competitive Loans) and unused Commitments at such time; provided that, for
purposes of declaring the Loans to be due and payable pursuant to Article
VII, and for all purposes after the Loans become due and payable pursuant to
Article VII or the Commitments expire or terminate, the outstanding
Competitive Loans of the Banks shall be included in their respective
Revolving Credit Exposures in determining the Majority Banks.
"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 Regulation 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.
"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 ▇▇▇▇▇'▇ Investors Service, Inc.
"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, its Chief Executive Officer, its Chief
Financial Officer, its President, one of its Vice Presidents, its Treasurer,
or its Assistant Treasurer, in each case without personal liability.
"Original Termination Date" means April 20, 2007.
"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 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 7.1(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 402 1(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, to the
extent modified pursuant to Section 6.12 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, or such other office as the Administrative Agent
may hereafter designate from time to time as its
"Principal Office" by notice to the Company and the Banks.
"Property" means all types of real, personal, tangible, intangible, or
mixed property.
"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 9.11(e).
"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 Effective 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 Effective 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.
"Reimbursement Obligation" means the obligation of the Company to
reimburse the Issuing Bank pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"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.
"Revolving Credit Exposure" means, with respect to any Bank at any
time, the sum of the outstanding principal amount of such Bank's Loans and
its L/C Obligations at such time. For the purposes of this definition each
Bank shall be deemed to hold a pro rata share of the total L/C Obligations
based on the percentage which its Commitment represents of the aggregate
Commitments.
"Rights" means rights, remedies, powers, and privileges.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"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 9.8.
"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.
"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.
"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 7.2.
"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 1.2 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 II
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 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") and (c) the Total
Commitment shall be deemed further used from time to time to the extent of
the L/C Obligations, and such deemed use of the Total Commitment shall be
applied to the Banks ratably according to their respective Commitments,
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, (y) the outstanding aggregate principal amount of all Competitive
Loans made by all Banks and (z) the L/C Obligations 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 a duly completed
Competitive Bid Request, to be received by the Administrative Agent (i)
in the case of Eurodollar Loans, not later than 10:00 a.m.,
New York
City 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 10:00 a.m.,
New York City 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 Administrative Agent's
sole discretion, and the Administrative Agent 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 Administrative 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
Administrative Agent via telecopier, substantially in the form of
Exhibit C hereto, (i) in the case of Eurodollar Loans, not later than
10:00 a.m.,
New York City 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.,
New York
City 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 Administrative Agent after conferring with, and upon
the instruction of, the Company, and the Administrative 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.
(c) The Administrative 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 Administrative 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 Administrative 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 12:00 noon,
New York City 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
10:30 a.m.,
New York City 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 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 Administrative 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
Administrative Agent shall 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 Administrative 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 Administrative Agent shall mutually agree otherwise.
(h) If the Administrative 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 Administrative Agent
pursuant to paragraph (b) above.
(i) All notices required by this Section 2.2 shall be made in
accordance with Section 9.2.
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 11:00 a.m.,
New York City 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 11:00 a.m.,
New York City 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
11:00 a.m., New York City 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.
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 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 11:00 a.m., New York City 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 11:00 a.m., New York City 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 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, on the
Termination Date and, if applicable, on the relevant Loan
Payment 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 (or, if the Commitments shall have been terminated, by
the average outstanding principal amount of the Committed Loans of such
Bank ("Loan Based Accrual")) during the preceding three-month period
(or shorter period commencing with the Effective Date and/or ending
with the Termination Date or the relevant Loan Payment Date, as the
case may be). All 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 Termination Date or, if earlier, the date of the
termination of the Commitment of such Bank as provided herein (or, if
Loan Based Accrual is applicable, on the date (the "Loan Payment Date")
the relevant Loans have been paid in full).
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). 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 account 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 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 or increase the Company's obligations to such
Bank hereunder. 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 1:00 p.m., New York City time, and the
Administrative Agent shall by 2:00 p.m., New York City 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.
(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.
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
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
Alternate Base Rate plus the Applicable Margin (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 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. 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 (i) in the case of the principal
amount of any Eurodollar Loan or any Competitive Loan, 2% above the rate
otherwise applicable thereto and (ii) in all other cases, 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
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 the Majority Banks
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 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 sum of (x)
the aggregate principal amount of the Loans outstanding and (y) the L/C
Obligations 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.
(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.
(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.
(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, 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 9.11) 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 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 9.11(c) to any such 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,
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, 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.
(b) For purposes of this Section 2.14, a notice to the Company
(with a copy to the Administrative 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
IV, (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 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.
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 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 9.6 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.
Section 2.18 Payments
(a) The Company shall make each payment hereunder and under any
instrument delivered hereunder not later than 12:00 noon (New York City
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.
(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 Effective 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 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 III
LETTERS OF CREDIT
Section 3.1 L/C Commitment
(a) Subject to the terms and conditions hereof, the Issuing Bank,
in reliance on the agreements of the other Banks set forth in Section
3.4(a), agrees to issue letters of credit ("Letters of Credit") for the
account of the Company on any Business Day on and after the Effective
Date and until the termination of the Commitment of the Issuing Bank in
accordance with the terms hereof, in such form as may be approved from
time to time by the Issuing Bank; provided that the Issuing Bank shall
not issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment or
(ii) the excess of the Total Commitment over the aggregate amount of
Loans and L/C Obligations then outstanding would be less than zero.
Each Letter of Credit shall (i) be denominated in dollars and (ii)
expire no later than the earlier of (x) the first anniversary of its
date of issuance and (y) the date that is five Business Days prior to
the Termination Date, provided that any Letter of Credit with a one
-year term may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the date referred to in
clause (y) above).
(b) The Issuing Bank shall not at any time be obligated to issue
any Letter of Credit if such issuance would conflict with, or cause the
Issuing Bank or any L/C Participant to exceed any limits imposed by,
any applicable Laws.
Section 3.2 Procedure for Issuance of Letter of Credit. The
Company may from time to time request that the Issuing Bank issue a Letter of
Credit by delivering to the Issuing Bank at its address for notices specified
herein an Application therefor, completed to the reasonable satisfaction of
the Issuing Bank, and such other certificates, documents and other papers and
information as the Issuing Bank may reasonably request. Upon receipt of any
Application, the Issuing Bank will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall
the Issuing Bank be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating
thereto) by issuing the original of such Letter of Credit to the beneficiary
thereof or as otherwise may be agreed by the Issuing Bank and the Company.
The Issuing Bank shall furnish a copy of such Letter of Credit to the Company
promptly following the issuance thereof. The Issuing Bank shall promptly
furnish to the Administrative Agent, which shall in turn promptly furnish to
the Banks, notice of the issuance of each Letter of Credit (including the
amount thereof).
Section 3.3 Fees and Other Charges
(a) The Company will pay to the Administrative Agent for the
ratable benefit of the Banks on each Quarterly Payment Date after the
issuance date and on the Termination Date a fee on all outstanding
Letters of Credit at a per annum rate equal to the Applicable Margin
then in effect with respect to Eurodollar Loans. In addition, the
Company shall pay to the Issuing Bank for its own account a fronting
fee at a per annum rate separately agreed upon between the Company and
the Issuing Bank (which fee, in the case of JPMorgan Chase Bank, is
reflected in the fee letter dated March 17, 2004, between the Company
and JPMorgan Chase Bank) on the undrawn and unexpired amount of each
Letter of Credit, payable quarterly in arrears on each Quarterly
Payment Date after the issuance date and on the Termination Date. Fees
payable pursuant this Section 3.3(a) shall be calculated on the basis
of a 360-day year for the actual days elapsed.
(b) In addition to the foregoing fees, the Company shall pay or
reimburse the Issuing Bank for such normal and customary costs and
expenses as are incurred or charged by the Issuing Bank in issuing,
negotiating, effecting payment under, amending or otherwise
administering any Letter of Credit.
Section 3.4 L/C Participations
(a) The Issuing Bank irrevocably agrees to grant and hereby
grants to each L/C Participant, and, to induce the Issuing Bank to
issue Letters of Credit, each L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from the Issuing
Bank, on the terms and conditions set forth below, for such L/C
Participant's own account and risk an undivided interest, equal to the
percentage which such L/C Participant's Commitment represents of the
Total Commitment, in the Issuing Bank's obligations and rights under
and in respect of each Letter of Credit and the amount of each draft
paid by the Issuing Bank thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Bank that, if a
draft is paid under any Letter of Credit for which the Issuing Bank is
not reimbursed in full by the Company in accordance with the terms of
this Agreement, such L/C Participant shall pay to the Issuing Bank upon
demand a fraction of the amount of such draft, or any part thereof,
that is not so reimbursed, equal to the percentage which such L/C
Participant's Commitment represents of the Total Commitment.
(b) If any amount required to be paid by any L/C Participant to
the Issuing Bank pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Bank under any
Letter of Credit is paid to the Issuing Bank within three Business Days
after the date such payment is due, such L/C Participant shall pay to
the Issuing Bank on demand an amount equal to the product of (i) such
amount, times (ii) the daily average Federal Funds Effective Rate
during the period from and including the date such payment is required
to the date on which such payment is immediately available to the
Issuing Bank, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of
which is 360. If any such amount required to be paid by any L/C
Participant pursuant to Section 3.4(a) is not made available to the
Issuing Bank by such L/C Participant within three Business Days after
the date such payment is due, the Issuing Bank shall be entitled to
recover from such L/C Participant, on demand, such amount with interest
thereon calculated from such due date at the rate per annum applicable
to Alternate Base Loans. A certificate of the Issuing Bank submitted
to any L/C Participant with respect to any amounts owing under this
Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Bank has made payment
under any Letter of Credit and has received from any L/C Participant
its pro rata share of such payment in accordance with Section 3.4(a),
the Issuing Bank receives any payment related to such Letter of Credit
(whether directly from the Company or otherwise, including proceeds of
collateral applied thereto by the Issuing Bank), or any payment of
interest on account thereof, the Issuing Bank will distribute to such
L/C Participant its pro rata share thereof; provided, however, that in
the event that any such payment received by the Issuing Bank shall be
required to be returned by the Issuing Bank, such L/C Participant shall
return to the Issuing Bank the portion thereof previously distributed
by the Issuing Bank to it.
Section 3.5 Reimbursement Obligation of the Company. If any
draft is paid under any Letter of Credit, the Company shall reimburse
the Issuing Bank for the amount of (a) the draft so paid and (b) any
taxes, fees, charges or other costs or expenses incurred by the Issuing
Bank in connection with such payment, not later than 12:00 noon, New
York City time, on (i) the Business Day that the Company receives
notice of such draft, if such notice is received on such day prior to
10:00 a.m., New York City time, or (ii) if clause (i) above does not
apply, the Business Day immediately following the day that the Company
receives such notice. Each such payment shall be made to the Issuing
Bank at its address for notices referred to herein in dollars and in
immediately available funds. Interest shall be payable on any such
amounts from the date on which the relevant draft is paid until payment
in full at the rate set forth in (x) until the Business Day next
succeeding the date of the relevant notice, Section 2.9(b) and (y)
thereafter, Section 2.10.
Section 3.6 Obligations Absolute. The Company's obligations
under this Article III shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff, counterclaim or
defense to payment that the Company may have or have had against the
Issuing Bank, any beneficiary of a Letter of Credit or any other
Person. The Company also agrees with the Issuing Bank that the Issuing
Bank shall not be responsible for, and the Company's Reimbursement
Obligations under Section 3.5 shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Company and
any beneficiary of any Letter of Credit or any other party to which
such Letter of Credit may be transferred or any claims whatsoever of
the Company against any beneficiary of such Letter of Credit or any
such transferee. The Issuing Bank shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in connection with any
Letter of Credit, except for errors or omissions found by a final and
nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Issuing
Bank. The Company agrees that any action taken or omitted by the
Issuing Bank under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence
or willful misconduct and in accordance with the standards of care
specified in the Uniform Commercial Code of the State of New York,
shall be binding on the Company and shall not result in any liability
of the Issuing Bank to the Company.
Section 3.7 Letter of Credit Payments. If any draft shall be
presented for payment under any Letter of Credit, the Issuing Bank
shall promptly notify the Company of the date and amount thereof.
The responsibility of the Issuing Bank to the Company in connection
with any draft presented for payment under any Letter of Credit shall,
in addition to any payment obligation expressly provided for in such
Letter of Credit, be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with
such Letter of Credit.
Section 3.8 Applications. To the extent that any provision of
any Application related to any Letter of Credit is inconsistent with
the provisions of this Article III, the provisions of this Article III
shall apply.
ARTICLE IV
CONDITIONS OF LENDING
Section 4.1 Conditions Precedent. The effectiveness of this
Agreement is subject to the satisfaction of the following conditions
precedent:
(a) The Administrative Agent shall have received the following,
each dated (unless otherwise indicated) the Effective Date:
(i) Officer's Certificates dated the Effective 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.
(ii) 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 a reasonable time
prior to the Effective Date and issued by the Secretary of State
of Texas and one certificate dated the Effective Date and
executed by the corporate secretary or assistant secretary of the
Company.
(iii) Certificates (dated within twenty days prior to the
Effective Date) of existence and good standing of the Company
from appropriate officials of Texas.
(iv) The written opinions of internal and outside counsel to
the Company and counsel to the Agents, substantially in the form
set out in Exhibits E-1, E-2 and E-3, respectively, each dated
the Effective Date.
(v) An Administrative Questionnaire (dated any date prior to
the Effective Date) completed by each Bank which is a party
hereto on the Effective Date.
(vi) Such other agreements, documents, instruments, opinions,
certificates, and evidences as the Administrative Agent may
reasonably request prior to the Effective Date.
(b) Any fees required to be paid on or before the Effective Date
shall have been paid.
(c) The commitments under the Existing Credit Agreements shall
have been terminated and all amounts owing thereunder shall have been
paid in full. Each party hereto that is also a party to an Existing
Credit Agreement hereby waives any requirement under such Existing
Credit Agreement of advance notice for any such termination or payment.
Section 4.2 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, but excluding
any Committed Borrowing used exclusively to finance the payment of any
Reimbursement Obligation) shall be subject to the further conditions 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 V
(except the last sentence of Section 5.2 and except Section 5.5) 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
sum of the aggregate principal amount of all Loans then outstanding and
of the L/C Obligations shall not exceed the Total Commitment.
Section 4.3 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 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 V
(except the last sentence of Section 5.2 and except Section 5.5) 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 teen 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;
(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
sum of the aggregate principal amount of all Loans then outstanding and
of the L/C Obligations shall not exceed the Total Commitment.
Section 4.4 Conditions Precedent to Each Letter of Credit
Issuance. The obligation of the Issuing Bank to issue a Letter of Credit
(including the initial Letter of Credit) shall be subject to the further
conditions precedent that on the date of the issuance of such Letter of
Credit the following statements shall be true (and each delivery of an
Application by the Company shall constitute a representation and warranty by
the Company that on the date of such Application such statements are
true):
(a) The representations and warranties contained in Article V
(except the last sentence of Section 5.2 and except Section 5.5) are
correct in all material respects on and as of the date of the issuance
of such Letter of Credit (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 issuance, as
though made on and as of such date;
(b) No event has occurred and is continuing, or would result from
the issuance of such Letter of Credit, which constitutes either a
Default or an Event of Default; and
(c) Following the issuance of such Letter of Credit and the
making of any Borrowings to be made on the same day under this
Agreement, the sum of the aggregate principal amount of all Loans then
outstanding and of the L/C Obligations shall not exceed the Total
Commitment.
Section 4.5 Legal Details. All documents executed or submitted
pursuant hereto by the Company shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel. The Administrative
Agent shall, promptly following satisfaction of the conditions specified in
Section 4.1, 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 Administrative Agent.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agents and Banks as follows:
Section 5.1 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;
(c) On the Effective 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 Effective Date, the Company has no Material
Subsidiaries.
Section 5.2 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 Effective Date, there has been
no Material Adverse Change since December 31, 2003.
Section 5.3 Compliance with Agreement and Laws. On the
Effective 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 5.4 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 instrument to which
the Company is now a party. The Loan Papers are the valid and binding
obligations of the Company and are enforceable in accordance with their
respective terms.
Section 5.5 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 Effective 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 5.6 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 5.7 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, 1994.
Section 5.8 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.
Section 5.9 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 5.10 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 5.11 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 5.12 Purpose of Loan. 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 5.13 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 5.14 General. As of the Effective Date, there is no
material fact or condition relating to the Loan Papers or the financial
condition and business of the Company and its 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 VI
COVENANTS
So long as the Company may borrow hereunder and until the Obligation
has been paid in full, the Company covenants as follows:
Section 6.1 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 6.2 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 6.3 Maintenance of Existence Licenses and Franchises:
Compliance With Agreements. Except to the extent otherwise permitted in
Article VI, 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.
Section 6.4 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 6.4, 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 6.5 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.
Section 6.6 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 6.6 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 6.6, 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 6.7 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 6.8 Appraisals. On each Appraisal Delivery Date, the
Company shall submit an Appraisal of the Pool Assets to the Administrative
Agent (for onward distribution to the Banks) as of the date which is no more
than 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 (c) 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.
Section 6.9 Coverage Ratio. The Company shall maintain at all
times a Coverage Ratio of not less than 1.25 to 1.0.
Section 6.10 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 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.
In the case of paragraphs (a), (b) and (c) above (other than the
Financial Report Certificate) the Company may satisfy the reporting
requirements in respect thereof by making the documents referred to
therein available to the Banks on its website, provided that the
Administrative Agent and the Lenders shall have been given prior notice
of each such availability. Notwithstanding the foregoing, the Company
shall deliver hard copies of any such documents to any Lender that
notifies the Company that such delivery is required by any Laws
applicable to such Lender.
Section 6.11 Use of Proceeds. Proceeds advanced hereunder
shall be used only as represented herein.
Section 6.12 Pool Assets. 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 6.8), 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 in
respect of the Pool Assets at any future time, except that:
(a) 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 at least 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 an Officer's Certificate to the
Administrative Agent certifying compliance with this Section 6.12 and
attaching to such certificate the Appraisal required by Section 6.8;
(b) 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
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 an Officer's Certificate to the Administrative
AAgent 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 6.12 and attaching to such
certificate Appraisals of all Pool Assets obtained in connection with
such removal; and
(c) in the event (x) that an Appraisal furnished pursuant to
Section 6.8 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 6.8, 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 an Officer's Certificate certifying that the conditions
set forth in this Section 6.12 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.
Section 6.13 Restrictions on Liens. (a) The Company will not,
nor will it permit any 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 authorize the filing with respect to any of the Pool Assets of any
financing statement naming the Company or any Subsidiary as debtor under the
Uniform Commercial Code or any similar notice of Lien naming the Company or
any 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.
(b) The Company will not enter into or suffer to exist, and will
not permit any of its 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 6.14 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 Effective 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).
Section 6.15 Assignment. The Company will not assign or
transfer any of its Rights, duties, or obligations under any of the Loan
Papers.
ARTICLE VII
EVENTS OF DEFAULT; REMEDIES
Section 7.1 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 or any Reimbursement Obligation when due whether
at maturity, by declaration as authorized by this Agreement, or
otherwise; or failure to pay, within 5 Business Days after the due date
thereof, any interest on any Loan or any Reimbursement Obligation; or
failure to pay, within 5 Business Days after the due date thereof, or
if no due date therefor is herein specified within 5 Business 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 shall consent to the appointment of any
receiver, trustee, custodian or liquidator of it or all or 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 $50,000,000 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 $50,000,000 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) 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 7.2 Remedies Upon Default. If an Event of Default
specified in Section 7.l(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 hereby expressly waived. Except as set forth in the
preceding sentence, should any other 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.
With respect to all Letters of Credit with respect to which presentment
for honor shall not have occurred at the time of an acceleration pursuant to
this Section 7.2, the Company shall, upon any such acceleration, deposit in a
cash collateral account opened by the Administrative Agent an amount equal to
the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay
other obligations of the Company hereunder and under the other Loan Papers.
After all such Letters of Credit shall have expired or been fully drawn upon,
all Reimbursement Obligations shall have been satisfied and all other
obligations of the Company hereunder and under the other Loan Papers shall
have been paid in full, the balance, if any, in such cash collateral account
shall be returned to the Company (or such other Person as may be lawfully
entitled thereto).
Section 7.3 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 VIII
THE AGENTS
Section 8.1 Authorization and Action. Each Bank hereby
irrevocably appoints and authorizes (a) JPMorgan Chase Bank to act as its
Administrative Agent hereunder and under each of the other Loan Papers, (b)
Citibank, N.A. to act as Syndication Agent hereunder and (c) Barclays Bank
PLC, SunTrust Bank and UBS AG to act as Documentation Agents hereunder.
JPMorgan Chase Bank consents to such appointment and agrees to perform the
duties of the Administrative Agent hereunder and under the other Loan Papers.
Citibank, N.A. consents to such appointment and agrees, in consultation with
the Company and the Administrative Agent, to select a syndicate of Banks to
participate in the Commitments. Each Bank authorizes and directs the
Administrative 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 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 8.2 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 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 8.2 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 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 8.3 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 8.4 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 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 8.5 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 the Administrative 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 8.5, 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 the Administrative 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 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 8.5 shall survive the
termination of this Agreement and/or the payment or assignment of any of
the Loans or Notes.
Section 8.6 Successor Administrative Agent. The Administrative
Agent may resign at any time by giving written notice thereof to the Banks
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 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
VIII 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 8.7 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; 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 8.1
and Section 8.2.
Section 8.8 Documentation Agents and Syndication Agent.
Neither the Documentation Agents nor the Syndication Agent shall have any
duties or responsibilities hereunder in its capacity as such.
ARTICLE IX
MISCELLANEOUS
Section 9.1 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
Banks (or the Administrative Agent with the consent of 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 each Bank directly affected thereby (or the
Administrative Agent with the consent of all the Banks), do any of the
following: (a) increase the amount of the Commitments of any Banks or subject
any Banks to any additional obligations, (b) 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, (c) postpone any date fixed for any payment
of principal of, or interest on, the Loans or any fees hereunder,
(d)eliminate or reduce the voting rights of any Bank under this Section 9.1,
or (e) 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; provided,
further, that no amendment waiver, or consent shall modify or waive any
provision of Article III or Section 4.4 without the written consent of ]
the Issuing Bank; 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.
Section 9.2 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 and the Administrative
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 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:
Southwest Airlines Co.
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▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
(b) If to the Administrative Agent, to it at:
JPMorgan Chase Bank Loan and Agency Service
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
with a copy to (other than in the case of funding matters):
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(c) 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 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 VIII shall not be effective
until received by such Agent.
Section 9.3 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 9.4 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 execution and delivery of this Agreement or any other
Loan Paper. The obligations of the Company under this Section 9.4 shall
survive the termination of this Agreement and/or repayment of the Loans.
Section 9.5 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 9.6 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 and application. The Rights of each Bank under this
Section 9.6 are in addition to the Rights and remedies (including, without
limitation, other Rights of setoff) which such Bank may have.
SECTION 9.7 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
Section 9.8 Submission To Jurisdiction; Waivers. The Company
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Papers to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States for
the Southern District of New York, and appellate courts from any
thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Company, as the case may be at its address set forth in
Section 9.2 or at such other address of which the Administrative Agent
shall have been notified pursuant thereto; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction.
Section 9.9 Survival of Representations and Warranties. All
rrepresentations 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 9.10 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 9.11), the
Agents, each Bank and their respective successors and assigns.
Section 9.11 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 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 II and Section 9.4, 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 9.5, (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 to one or more Persons, all or a portion
of its interests, rights, and obligations 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) such assignment, if not to a Bank or an
Eligible Affiliate Assignee of the assigning Bank, shall be consented
to by 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, (ii) each
Bank's Commitment (including Loans owing to it and its pro rata share
of the L/C Obligations) shall not be less than $5,000,000 minus
reductions pursuant to Section 2.6(a) unless (x) otherwise agreed by
the Company and the Administrative Agent or (y) in the case of the
assigning Bank, such amount is reduced to zero pursuant to such
assignment, (iii) 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), (iv) the
assignee thereof shall deliver to the Company and the Administrative
Agent any Internal Revenue Service forms required by Section 2.19, and
(v) 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 G hereto (an "Assignment and Acceptance"),
together with a properly completed Administrative Questionnaire, any
Note or Notes subject to such assignment and a processing and
recordation fee of $3,500 (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 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 assignee confirm to and agree with
each other and the other 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 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 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 assignee appoints and authorizes
the Administrative Agent to take such action on behalf of such 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; and (vi) such 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.
(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, 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
or the Administrative 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 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 G 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 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 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 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 9.11, 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 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 9.12 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 9.13 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 9.14 Integration. This Agreement and the other Loan
Papers represent the entire agreement of the Company, the Administrative
Agent and the Banks with respect to the subject matter hereof and thereof,
and there are no promises, undertakings, representations or warranties by the
Administrative Agent or any Bank relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Papers.
Section 9.15 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 9.16 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.
Section 9.17 WAIVERS OF JURY TRIAL. THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN PAPER AND FOR ANY
COUNTERCLAIM THEREIN
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:
Name: ______________________________
Title: ______________________________
$60,000,000 JPMORGAN CHASE BANK, as a Bank, an Issuing
Bank and as Administrative Agent
By:
Name: ______________________________
Title: _______________________________
$60,000,000 CITICORP USA INC., as a Bank and as
Syndication Agent
By:
Name: ______________________________
Title: _______________________________
$40,000,000 BARCLAYS BANK PLC, as a Bank and as a
Documentation Agent
By:
Name: ______________________________
Title: _______________________________
$40,000,000 SUNTRUST BANK, as a Bank and as a
Documentation Agent
By:
Name: ______________________________
Title: _______________________________
UBS AG, STAMFORD BRANCH, as a
Documentation Agent
By:
Name: ______________________________
Title: _______________________________
By:
Name: ______________________________
Title: _______________________________
$30,000,000 BANK ONE, NA
By:
Name: ______________________________
Title: _______________________________
$35,000,000 BNP PARIBAS
By:
Name: ______________________________
Title: _______________________________
By:
Name: ______________________________
Title: _______________________________
$20,000,000 COMERICA BANK
By:
Name: ______________________________
Title: _______________________________
$35,000,000 CREDIT SUISSE FIRST BOSTON, acting through
its Cayman Islands Branch
By:
Name: ______________________________
Title: _______________________________
$35,000,000 DEUTSCHE BANK AG, NEW YORK BRANCH
By:
Name: ______________________________
Title: _______________________________
By:
Name: ______________________________
Title: _______________________________
$20,000,000 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
By:
Name: ______________________________
Title: _______________________________
$35,000,000 SOCIETE GENERALE
By:
Name: ______________________________
Title: _______________________________
$35,000,000 THE ROYAL BANK OF SCOTLAND PLC
By:
Name: ______________________________
Title: _______________________________
$35,000,000 THE BANK OF TOKYO-MITSUBISHI, LTD.
By:
Name: ______________________________
Title: _______________________________
By:
Name: ______________________________
Title: _______________________________
$40,000,000 UBS LOAN FINANCE LLC
By:
Name: ______________________________
Title: _______________________________
By:
Name: ______________________________
Title: _______________________________
$35,000,000 ▇▇▇▇▇ FARGO BANK, N.A.
By:
Name: ______________________________
Title: _______________________________
$20,000,000 ▇▇▇▇▇▇▇ STREET COMMITMENT CORPORATION
By:
Name: ______________________________
Title: _______________________________