3-YEAR COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
among
SOUTHWEST AIRLINES CO.,
THE BANKS PARTY HERETO,
CITIBANK, N.A.,
as Syndication Agent,
BANK ONE CORPORATION
And
SUNTRUST BANK,
as Documentation Agents,
and
JPMORGAN CHASE BANK,
as Administrative Agent
As of April 23, 2002
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
And
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
as Joint 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 16
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 20
Section 2.13 Reserve Requirements; Change in Circumstances 22
Section 2.14 Change in Legality 22
Section 2.15 Indemnity 23
Section 2.16 Pro Rata Treatment 23
Section 2.17 Sharing of Setoffs 24
Section 2.18 Payments 25
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 27
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 29
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 31
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 44
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 45
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
3-YEAR COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
3-YEAR COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT dated
as of April 23, 2002, among SOUTHWEST AIRLINES CO., a Texas corporation (the
"Company"). the Banks, JPMORGAN CHASE BANK, a New York banking corporation,
as administrative agent for the Banks (in such capacity, the "Administrative
Agent"). CITIBANK, N.A., a national banking association, as syndication agent
for the Banks (in such capacity, the "Syndication Agent"). BANK ONE
CORPORATION, a Delaware corporation and SUNTRUST BANK, a Georgia corporation,
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 $287,500,000 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 I. I 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 Agent.
"Agreed Maximum Rate" means, for any date, 2% per annum above the
interest rate then applicable to Alternate Base Loans.
"Agreement" means this 3-Year 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 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 signatory hereto and other banks 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 sum of(x) 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) plus (y) the "Total
Commitment" on such date (or, after termination of the "Commitments", the sum
of the aggregate outstanding amount of "Loans"); capitalized terms used in
this clause (y) shall have the meaning assigned thereto in the 364-Day
Agreement.
"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, 2001.
"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 23,2002.
"Eligible Affiliate Assignee" means (i) a commercial bank organized
under the Laws of the United States, or any state thereof, and having total
assets in excess of $1,000,000,000; (ii) a commercial bank organized under
the Laws of France, Germany, the Netherlands or the United Kingdom, or under
the Laws of a political subdivision of any such country, and having total
assets in excess of $1,000,000,000; provided that such bank is acting through a
branch or agency located in such country or the United States; and (iii) a
commercial bank organized under the Laws of any other country which is a member
of the OECD, or under the Laws of a political subdivision of any such country,
and having total assets in excess of $1,000,000,000; provided that such bank is
acting through a branch or agency located in the United States.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"Eurocurrency Liabilities" is defined in Regulation D.
"Eurodollar Interbank Market" means the London eurodollar interbank
market.
"Eurodollar Lending Office" means, with respect to each Bank, the
branches or affiliates of such Bank which such Bank has designated on
Schedule I as its "Eurodollar Lending Office" or may hereafter designate from
time to time as its "Eurodollar Lending Office" by notice to the Company 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 Agreement" means the Competitive Advance and
Revolving
Credit Facility Agreement, dated as of May 6, 1997, among the
Company, Texas Commerce Bank National Association, as administrative agent,
the banks party thereto, Bank of America National Trust and Savings
Association, as documentation agent, NationsBank of Texas, N.A., as
Syndication Agent and The Chase Manhattan Bank, as Auction Administration
Agent.
"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 ofsuch 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.
"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 and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures 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 22, 2005.
"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 I (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.
"364-Day Agreement" means the 364-Day Credit Agreement, dated as of
April 23, 2002, among the Company, the banks parties thereto, JPMorgan Chase
Bank, as administrative agent, Citibank, N.A, as syndication agent, Bank One
Corporation and SunTrust Bank, as documentation agents, as the same may from
time to time be modified, supplemented or amended.
"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 3 60 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 3 60 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 hiterBank 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 ofJPMorgan Chase Bank, is reflected in the fee letter dated March
18, 2002, between the Company, ▇.▇. ▇▇▇▇▇▇ Securities Inc. 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.rn., 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-l, 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 Agreement shall
have been terminated and all amounts owing thereunder shall have been paid in
full. Each party hereto that is also a party to the Existing Credit Agreement
hereby waives any requirement under the 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 Sections 5.2 and 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 Sections 5.2 and 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 Sections 5.2 and 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, 2001.
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 aagainst 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, 1991.
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 byjudicial 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 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 1O-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 1O-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 1O-K, 1O-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 Agent certifying that, and providing
calculations demonstrating that, after giving effect to such removal, the
Appraised Value of the Pool Assets shall satisfy the Collateral Coverage
Test, and otherwise certifying compliance with this Section 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. 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
suffer to exist 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 of30 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 a substantial part of its Property;
or a proceeding or action shall be instituted or commenced against the
Company or any Material Subsidiary seeking an order for relief or a
reorganization, arrangement, composition, liquidation, receivership, or
similar relief under any Debtor Relief Law or seeking the appointment,
without the consent of the Company or any Material Subsidiary, of any
receiver, trustee, custodian or liquidator of it or all or a substantial part
of the Property of the Company or any Material Subsidiary and such proceeding
or action shall remain undismissed or unstayed for a period of 90 days; or an
order, decree, or judgment for an involuntary petition adjudicating the
Company or any Subsidiary insolvent shall be entered by any court of
competent jurisdiction and shall remain undismissed or unstayed for a period
of 90 days.
(d) Payment of Judgments. The Company or any of its Material
Subsidiaries fails to pay any judgment or order for the payment of money in
excess of $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 7.1(c) occurs, the Commitments of the Banks shall
thereupon automatically terminate and the aggregate unpaid principal balance
of and accrued interest on the Obligation shall thereupon become due and
payable concurrently therewith, without any action by the Administrative
Agent or any Bank and without diligence, presentment, demand, protest, notice
of protest or intent to accelerate, or notice of any other kind, all of which
are 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 fall, 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) Bank One
Corporation and SunTrust Bank 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 slating 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 holdci (including any Bank)
unless and until such Agent receives written notice to the contrary. Notices,
consents, requests, approvals, demands, and other communications
(collectively "Communications") provided for herein shall be in writing
(including telecopy Communications) and mailed, telecopied or delivered:
(a) If to the Company, to it at:
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
(b) If to the Administrative Agent, to it at:
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇)▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Loan and Agency Services Group
or, in the case of matters relating to Competitive Loans:
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇)▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Loan and Agency Services Group
with a copy to (other than in the case of funding matters):
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 inhouse 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 setoffand application. The Rights of each Bank under this Section 9.6
are in addition to the Rights and remedies (including, without limitation,
other Rights ofsetoff) 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
representations and warranties contained herein or made in writing by the
Company in connection herewith shall survive the execution and delivery of
this Agreement and the other Loan Papers, and no investigation by any Agent
or any Bank or any closing shall affect the representations and warranties or
the Right of any Agent or any Bank to rely upon them.
Section 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-l 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 finished 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: _____________________________
$30,000,000 JPMORGAN CHASE BANK, as a Bank, an Issuing
Bank and as Administrative Agent
By:
Name: ______________________________
Title: _____________________________
$30,000,000 CITIBANK, N.A., as a Bank and as Syndication Agent
By:
Name: ______________________________
Title: _____________________________
$25,000,000 BANK ONE CORPORATION, as a Bank and as
Documentation Agent
By:
Name: ______________________________
Title: _____________________________
$25,000,000 SUNTRUST BANK, as a Bank and as Documentation
Agent
By:
Name: ______________________________
Title: _____________________________
$17,500,000 ABN AMRO BANK N.V.
By:
Name: ______________________________
Title: _____________________________
$17,500,000 BARCLAYS BANK PLC
By:
Name: ______________________________
Title: _____________________________
$17,500,000 BNP PARIBAS
By:
Name: ______________________________
Title: _____________________________
$17,500,000 DEUTSCHE BANK AG
By:
Name: ______________________________
Title: _____________________________
$17,500,000 SOCIETE GENERALE
By:
Name: ______________________________
Title: _____________________________
$17,500,000 ▇▇▇▇▇ FARGO BANK, N.A.
By:
Name: ______________________________
Title: _____________________________
$12,500,000 COMERICA BANK
By:
Name: ______________________________
Title: _____________________________
$12,500,000 ▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
By:
Name: ______________________________
Title: _____________________________
$12,500,000 UBS AG, Stamford Branch
By:
Name: ______________________________
Title: _____________________________
$12,500,000 WACHOVIA BANK
By:
Name: ______________________________
Title: _____________________________
$12,500,000 THE BANK OF TOKYO-MITSUBISHI, LTD.
By:
Name: ______________________________
Title: _____________________________
By:
Name: ______________________________
Title: _____________________________
$10,000,000 THE MITSUBISHI TRUST AND BANKING CORPORATION
By:
Name: ______________________________
Title: _____________________________