EXHIBIT 10.22
CONFORMED COPY
$1,350,000,000 REVOLVING CREDIT AGREEMENT
DATED AS OF
FEBRUARY 2, 1995
AMONG
INTERNATIONAL LEASE FINANCE CORPORATION
UNION BANK OF SWITZERLAND
LOS ANGELES BRANCH
AND
THE OTHER BANKS (AS DEFINED HEREIN)
TABLE OF CONTENTS
Page
SECTION 1. CERTAIN DEFINITIONS . . . . . . . . . . . . . . 1
Section 1.1. Terms Generally. . . . . . . . . . . . . . 1
Section 1.2. Specific Terms . . . . . . . . . . . . . . 1
SECTION 2. BID LOANS AND BID NOTES . . . . . . . . . . . . 14
Section 2.1. Making of Bid Loans. . . . . . . . . . . . 14
Section 2.2. Procedure for Bid Loans. . . . . . . . . . 14
Section 2.3. Funding of Bid Loans . . . . . . . . . . . 16
Section 2.4. Bid Notes. . . . . . . . . . . . . . . . . 17
SECTION 3. COMMITTED LOANS AND NOTES . . . . . . . . . . . 17
Section 3.1. Agreement to Make Committed Loans. . . . . 17
Section 3.2. Procedure for Committed Loans. . . . . . . 17
Section 3.3. Maturity of Committed Loans. . . . . . . . 19
Section 3.4. Committed Notes. . . . . . . . . . . . . . 19
SECTION 4. INTEREST AND FEES . . . . . . . . . . . . . . . 19
Section 4.1. Interest Rates . . . . . . . . . . . . . . 19
Section 4.2. Interest Payment Dates . . . . . . . . . . 20
Section 4.3. Setting and Notice of Committed Loan
Rates. . . . . . . . . . . . . . . . . . . 20
Section 4.4. Facility Fee . . . . . . . . . . . . . . . 21
Section 4.5. Agent's Fees . . . . . . . . . . . . . . . 21
Section 4.6. Utilization Fee. . . . . . . . . . . . . . 21
Section 4.7. Computation of Interest and Fees . . . . . 22
SECTION 5. REDUCTION OR TERMINATION OF THE COMMITMENTS;
PREPAYMENTS . . . . . . . . . . . . . . . . . . 22
Section 5.1. Voluntary Termination or Reduction of
the Commitments. . . . . . . . . . . . . . 22
Section 5.2. Voluntary Prepayments. . . . . . . . . . . 23
SECTION 6. MAKING AND PRORATION OF PAYMENTS; SET-OFF;
TAXES . . . . . . . . . . . . . . . . . . . . . 23
Section 6.1. Making of Payments . . . . . . . . . . . . 23
Section 6.2. Pro Rata Treatment; Sharing. . . . . . . . 23
Section 6.3. Set-off. . . . . . . . . . . . . . . . . . 24
Section 6.4. Taxes, etc.. . . . . . . . . . . . . . . . 24
SECTION 7. INCREASED COSTS AND SPECIAL PROVISIONS FOR
ABSOLUTE RATE LOANS, LIBOR RATE LOANS AND CD
RATE LOANS. . . . . . . . . . . . . . . . . . . 26
Section 7.1. Increased Costs. . . . . . . . . . . . . . 26
Section 7.2. Basis for Determining Interest Rate
Inadequate or Unfair . . . . . . . . . . . 28
Section 7.3. Changes in Law Rendering Certain Loans
Unlawful . . . . . . . . . . . . . . . . . 28
Section 7.4. Funding Losses . . . . . . . . . . . . . . 29
Section 7.5. Discretion of Banks as to Manner of
Funding. . . . . . . . . . . . . . . . . . 29
Section 7.6. Conclusiveness of Statements; Survival
of Provisions. . . . . . . . . . . . . . . 29
SECTION 8. REPRESENTATIONS AND WARRANTIES. . . . . . . . . 30
Section 8.1. Organization, etc. . . . . . . . . . . . . 30
Section 8.2. Authorization; Consents; No Conflict . . . 30
Section 8.3. Validity and Binding Nature. . . . . . . . 31
Section 8.4. Financial Statements . . . . . . . . . . . 31
Section 8.5. Litigation and Contingent Liabilities. . . 31
Section 8.6. Employee Benefit Plans . . . . . . . . . . 31
Section 8.7. Investment Company Act . . . . . . . . . . 32
Section 8.8. Public Utility Holding Company Act . . . . 32
Section 8.9. Regulation U . . . . . . . . . . . . . . . 32
Section 8.10. Information. . . . . . . . . . . . . . . . 32
Section 8.11. Compliance with Applicable Laws, etc.. . . 32
Section 8.12. Insurance. . . . . . . . . . . . . . . . . 33
Section 8.13. Taxes. . . . . . . . . . . . . . . . . . . 33
Section 8.14. Use of Proceeds. . . . . . . . . . . . . . 33
Section 8.15. Pari Passu . . . . . . . . . . . . . . . . 33
Section 8.16. Ownership and Liens. . . . . . . . . . . . 33
SECTION 9. COVENANTS . . . . . . . . . . . . . . . . . . . 34
Section 9.1. Reports, Certificates and Other
Information. . . . . . . . . . . . . . . . 34
Section 9.2. Existence. . . . . . . . . . . . . . . . . 36
Section 9.3. Nature of Business . . . . . . . . . . . . 36
Section 9.4. Books, Records and Access. . . . . . . . . 36
Section 9.5. Insurance. . . . . . . . . . . . . . . . . 36
Section 9.6. Repair . . . . . . . . . . . . . . . . . . 36
Section 9.7. Taxes. . . . . . . . . . . . . . . . . . . 37
Section 9.8. Compliance . . . . . . . . . . . . . . . . 37
Section 9.9. Merger, Purchase and Sale. . . . . . . . . 37
Section 9.10. Consolidated Indebtedness to
Consolidated Tangible Net Worth Ratio. . . 38
Section 9.11. Fixed Charge Coverage Ratio. . . . . . . . 38
Section 9.12. Consolidated Tangible Net Worth. . . . . . 38
Section 9.13. Restricted Payments. . . . . . . . . . . . 38
Section 9.14. Liens. . . . . . . . . . . . . . . . . . . 38
Section 9.15. Leases . . . . . . . . . . . . . . . . . . 41
Section 9.16. Use of Proceeds. . . . . . . . . . . . . . 41
Section 9.17. Transactions with Related Parties. . . . . 42
Section 9.18. Securitization . . . . . . . . . . . . . . 42
SECTION 10. CONDITIONS TO LENDING . . . . . . . . . . . . . 42
Section 10.1. Conditions Precedent to All Loans. . . . . 42
Section 10.2. Conditions to the Availability of the
Commitments. . . . . . . . . . . . . . . . 43
SECTION 11. EVENTS OF DEFAULT AND THEIR EFFECT. . . . . . . 44
Section 11.1. Events of Default. . . . . . . . . . . . . 44
Section 11.2. Effect of Event of Default . . . . . . . . 46
SECTION 12. THE AGENT . . . . . . . . . . . . . . . . . . . 47
Section 12.1. Authorization. . . . . . . . . . . . . . . 47
Section 12.2. Indemnification. . . . . . . . . . . . . . 47
Section 12.3. Action on Instructions of the Required
Banks. . . . . . . . . . . . . . . . . . . 48
Section 12.4. Payments . . . . . . . . . . . . . . . . . 48
Section 12.5. Exculpation. . . . . . . . . . . . . . . . 49
Section 12.6. Credit Investigation . . . . . . . . . . . 50
Section 12.7. UBS and Affiliates . . . . . . . . . . . . 50
Section 12.8. Resignation. . . . . . . . . . . . . . . . 50
SECTION 13. GENERAL . . . . . . . . . . . . . . . . . . . . 51
Section 13.1. Waiver; Amendments . . . . . . . . . . . . 51
Section 13.2. Notices. . . . . . . . . . . . . . . . . . 51
Section 13.3. Computations . . . . . . . . . . . . . . . 52
Section 13.4. Assignments; Participations. . . . . . . . 52
Section 13.5. Costs, Expenses and Taxes. . . . . . . . . 55
Section 13.6. Indemnification. . . . . . . . . . . . . . 56
Section 13.7. Regulation U . . . . . . . . . . . . . . . 56
Section 13.8. Extension of Termination Dates; Removal
of Banks; Substitution of Banks. . . . . . 56
Section 13.9. Captions . . . . . . . . . . . . . . . . . 59
Section 13.10. Governing Law; Severability. . . . . . . . 59
Section 13.11. Counterparts; Effectiveness. . . . . . . . 59
Section 13.12. Further Assurances . . . . . . . . . . . . 59
Section 13.13. Successors and Assigns . . . . . . . . . . 59
Section 13.14. Waiver of Jury Trial . . . . . . . . . . . 59
Section 13.15. Amendment of 1993 Agreement. . . . . . . . 60
SCHEDULES AND EXHIBITS
Schedule I Schedule of Banks (Sections 1.2
and 13.8)
Schedule II Fees and Margins (Sections 1.2, 4.4
and 4.6)
Exhibit A Form of Notice of Competitive Bid
Borrowing (Sections 1.2 and 2.2)
Exhibit B Form of Bid (Sections 1.2 and 2.2)
Exhibit C Form of Committed Loan Request
(Section 3.2)
Exhibit D Form of Bid Note (Section 1.2)
Exhibit E Form of Committed Note (Section 1.2)
Exhibit F Fixed Charge Coverage Ratio
(Sections 1.2 and 9.11)
Exhibit G Form of Opinion of O'Melveny & Myers,
Counsel for the Company (Section 10.2.5)
Exhibit H Form of Opinion of the General Counsel
of the Company (Section 10.2.5)
Exhibit I Form of Assignment and Assumption
Agreement (Section 13.4.1)
Exhibit J Form of Request For Extension of
Termination Date (Section 13.8)
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT (this "Agreement"), dated
as of February 2, 1995, among INTERNATIONAL LEASE FINANCE
CORPORATION, a California corporation (herein called the
"Company"), the financial institutions listed on the signature
pages hereof (herein, together with their respective successors
and assigns, collectively called the "Banks" and individually
each called a "Bank") and UNION BANK OF SWITZERLAND, acting
through its Los Angeles Branch (herein, in its individual
capacity, together with its successors and assigns, called
"UBS"), as agent for the Banks (herein, in such capacity,
together with its successors and assigns in such capacity,
called the "Agent").
W I T N E S S E T H:
WHEREAS, the Company has requested the Banks to lend up
to $1,350,000,000 to the Company on a revolving basis to enable
the Company to support its commercial paper program and for other
general corporate purposes;
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein contained, the parties hereto agree
as follows:
SECTION 1. CERTAIN DEFINITIONS.
Section 1.1. Terms Generally. The definitions
ascribed to terms in this Section 1 and elsewhere in this
Agreement shall apply equally to both the singular and plural
forms of the terms defined. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine
and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without
limitation". The words "hereby", "herein", "hereof", "hereunder"
and words of similar import refer to this Agreement as a whole
(including any exhibits and schedules hereto) and not merely to
the specific section, paragraph or clause in which such word
appears. All references herein to Sections, Exhibits and
Schedules shall be deemed references to Sections of and Exhibits
and Schedules to this Agreement unless the context shall
otherwise require.
Section 1.2. Specific Terms. When used herein, the
following terms shall have the following meanings:
Absolute Rate means a rate of interest per annum,
expressed as a percentage to four decimal places and set forth in
a Bid for a particular Bid Loan amount and a particular Loan
Period.
Absolute Rate Loan means any Loan which bears interest
at an Absolute Rate.
Affiliate means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or
under direct or indirect common control with such Person. A
Person shall be deemed to control another Person if such first
Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such other
Person, whether through ownership of stock, by contract or
otherwise.
Agent - see Preamble.
Aggregate Commitment means $1,350,000,000, as reduced
by any reduction in the Commitments made from time to time
pursuant to Section 5.1 or 13.8.
Agreement - see Preamble.
AIG means American International Group, Inc.
Assessment Rate means, at any time, the then current
rate as determined by the Agent after consultation with the
Reference Banks, for the lowest annual assessment payable by
banks to the FDIC (or any successor) for the FDIC's or such
successor's insuring dollar deposits in the United States and,
when used with respect to a Loan Period for a CD Rate Loan, shall
mean such rate as in effect from time to time during such Loan
Period.
Assignee - see Section 13.4.1.
Authorized Officer of the Company means any of the
Chairman of the Board, the President, the Executive Vice
President and Chief Financial Officer, the Treasurer, the
Controller and the Assistant Controller of the Company.
Available Commitment - see Section 2.2(a).
Bank - see Preamble.
Bank Parties - see Section 13.6.
Base LIBOR means, with respect to any Loan Period for a
LIBOR Rate Loan, the rate per annum determined by the Agent to be
the arithmetic mean (rounded to the nearest 1/16 of 1% or, if
there is no nearest 1/16 of 1%, to the next higher 1/16 of 1%) of
the respective rates of interest communicated by the Reference
Banks to the Agent as the rate at which Dollar deposits are
offered to the Reference Banks by leading banks in the London
interbank deposit market at approximately 11:00 a.m., London
time, on the second full Business Day preceding the first day of
such Loan Period in an amount substantially equal to the amount
of such LIBOR Rate Loan for such Reference Banks and for a period
equal to such Loan Period.
Base Rate means a fluctuating interest rate per annum,
as shall be in effect from time to time, which rate per annum
shall be equal to the higher of (i) the Prime Rate and (ii) one
half of one percent per annum above the Federal Funds Rate.
Base Rate Loan means any Loan which bears interest at
the Base Rate.
Bid means one or more offers by a Bank to make one or
more Bid Loans, submitted to the Agent by telephone no later than
the Submission Deadline and promptly confirmed in writing on the
same day on a duly completed and executed form substantially
similar to Exhibit B, personally delivered or transmitted by
facsimile to the Agent.
Bid Borrowing - see Section 2.2(a).
Bid Loan means a Loan in Dollars that is an Absolute
Rate Loan or a LIBOR Rate Loan made pursuant to Section 2.
Bid Note means a promissory note of the Company, sub-
stantially in the form of Exhibit D, duly completed, evidencing
Bid Loans made to the Company, as such note may be amended,
modified or supplemented or supplanted pursuant to Section 13.4.1
from time to time.
Business Day means any day of the year on which banks
are open for commercial banking business in the city of New York
and in Los Angeles and, if the applicable Business Day relates to
the determination of LIBOR for any LIBOR Rate Loan any such
Business Day on which dealings in deposits in Dollars are
transacted in the London interbank market.
Capitalized Lease means any lease under which any
obligations of the lessee are, or are required to be, capitalized
on a balance sheet of the lessee in accordance with generally
accepted accounting principles in the United States.
Capitalized Rentals means, as of the date of any
determination, the amount at which the obligations of the lessee,
due and to become due under all Capitalized Leases under which
the Company or any Subsidiary is a lessee, are reflected as a
liability on a consolidated balance sheet of the Company and its
Subsidiaries.
CD Base Rate means with respect to any Loan Period for
a CD Rate Loan the average of the bid rates (rounded to the
nearest 1/100 of 1% or, if there is no nearest 1/100 of 1%, to
the next higher 1/100 of 1%) quoted at 10:00 a.m., New York City
time (or as soon thereafter as is practicable), on the first
Business Day of such Loan Period by two or more New York
certificate of deposit dealers of recognized standing, selected
by the Agent, for the purchase at face value of 30-day, 60-day,
90-day or 180-day, as the case may be, certificates of deposit
sold by the Reference Banks in the secondary market in an amount
substantially equal to the amount of such CD Rate Loan.
CD Rate means, with respect to any Loan Period, the
rate per annum determined pursuant to the following formula,
which rate shall change during such Loan Period as and when the
Reserve Percentage or the Assessment Rate shall change:
CDBR
CD Rate = -------- + AR + ARM
1 - RP
where:
CDBR = CD Base Rate for such Loan Period for a
CD Rate Loan
AR = Assessment Rate
ARM = The applicable rate margin with respect
to CD Rate Loans set forth in
Schedule II hereto
RP = Reserve Percentage
CD Rate Loan means any Loan that bears interest at the
CD Rate.
Code means the Internal Revenue Code of 1986, as
amended.
Commitments means the Banks' commitments to make
Committed Loans hereunder; and Commitment as to any Bank means
the amount set forth opposite such Bank's name on Schedule I (as
reduced in accordance with Section 5.1, or as periodically
revised in accordance with Section 13.4 or Section 13.8).
Committed Loan means a Loan in Dollars that is a Base
Rate Loan, CD Rate Loan or LIBOR Rate Loan made pursuant to
Section 3.
Committed Loan Request - see Section 3.2(a).
Committed Note means a promissory note of the Company,
substantially in the form of Exhibit E, duly completed,
evidencing Committed Loans to the Company, as such note may be
amended, modified or supplemented or supplanted pursuant to
Section 13.4.1 from time to time.
Company - see Preamble.
Consolidated Indebtedness means, as of the date of any
determination, the total amount of Indebtedness, less the amount
of current and deferred income taxes and rentals received in
advance of the Company and its Subsidiaries determined on a
consolidated basis in accordance with generally accepted
accounting principles in the United States.
Consolidated Tangible Net Worth means, as of the date
of any determination, the total of shareholders' equity
(including capital stock, additional paid-in capital and retained
earnings after deducting treasury stock), less the sum of the
total amount of goodwill, organization expenses, unamortized debt
issue costs (determined on an after tax basis), deferred assets
other than prepaid insurance and prepaid taxes, the excess of
cost of shares acquired over book value of related assets,
surplus resulting from any revaluation write-up of assets
subsequent to September 30, 1994 and such other assets as are
properly classified as intangible assets, all determined in
accordance with generally accepted accounting principles in the
United States consolidating the Company and its Subsidiaries.
Dollar, and $, refer to the lawful money of the United
States.
ERISA means the Employee Retirement Income Security Act
of 1974, as amended.
ERISA Affiliate means any corporation, trade or
business that is, along with the Company or any Subsidiary, a
member of a controlled group of corporations or a controlled
group of trades or businesses, as described in sections 414(b)
and 414(c), respectively, of the Code or section 4001 of ERISA.
Eurodollar Reserve Percentage means for any day in any
Loan Period for any LIBOR Rate Loan that percentage in effect on
such day as prescribed by the Board of Governors of the Federal
Reserve System (or any successor thereto) or other U.S.
government agency for determining the reserve requirement
(including, without limitations, any marginal, basic,
supplemental or emergency reserves) for a member bank of the
Federal Reserve System in New York City with deposits exceeding
one billion dollars in respect of eurocurrency funding
liabilities. LIBOR shall be adjusted automatically on and as of
the effective date of any change in the Eurodollar Reserve
Percentage.
Event of Default means any of the events described in
Section 11.1.
Existing Litigation - see Section 10.1.3.
FASB 13 means the Statement of Financial Accounting
Standards No. 13 (Accounting for Leases) as in effect on the date
hereof.
FDIC means the Federal Deposit Insurance Corporation.
Federal Funds Rate means, for any day, the rate set
forth in the weekly statistical release designated as H.15(519),
or any successor publication, published by the Board of Governors
of the Federal Reserve System (including any such successor
publication, "H.15(519)") for such day opposite the caption
"Federal Funds (Effective)". If on any relevant day such rate is
not yet published in H.15(519), the rate for such day will be the
rate set forth in the daily statistical release designated as the
Composite 3:30 p.m. Quotations for U.S. Government Securities, or
any successor publication, published by the Federal Reserve Bank
of New York (including any such successor publication, the
"Composite 3:30 p.m. Quotations") for such day under the caption
"Federal Funds Effective Rate". If on any relevant day the
appropriate rate for such day is not yet published in either
H.15(519) or the Composite 3:30 p.m. Quotations, the rate for
such day will be the arithmetic mean of the rates for the last
transaction in overnight Federal funds arranged prior to
9:00 a.m., New York City time, on such day by each of three
leading brokers of Federal funds transactions in New York City,
selected by the Agent. The rate for any day which is not a
Business Day shall be the rate for the immediately preceding
Business Day.
Fixed Charge Coverage Ratio on the last day of any
quarter of any fiscal year of the Company means the ratio for the
period of four fiscal quarters ending on such day of earnings to
combined fixed charges and preferred stock dividends referred to
in Paragraph (d)(1)(i) of Item 503 of Regulation S-K of the
Securities and Exchange Commission, as amended from time to time,
and determined pursuant to Paragraphs (d)(2) through (d)(10) of
such Item 503 with the Company as "registrant" (such ratio for
the four fiscal quarters ended September 30, 1994 is attached
hereto as Exhibit F); provided, however, that if the Required
Banks in their sole discretion determine that amendments to
Regulation S-K subsequent to the date hereof substantially modify
the provisions of such Item 503, "Fixed Charge Coverage Ratio"
shall have the meaning determined by this definition without
regard to any such amendments.
Funding Date means the date on which any Loan is
scheduled to be disbursed.
Funding Office means, with respect to any Bank, any
office or offices of such Bank or Affiliate or Affiliates of such
Bank through which such Bank shall fund or shall have funded any
Loan. A Funding Office may be, at such Bank's option, either a
domestic or foreign office of such Bank or a domestic or foreign
office of an Affiliate of such Bank.
Governmental Authority means any nation or government,
any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
Guaranties by any Person means all obligations (other
than endorsements in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person
guaranteeing or in effect guaranteeing any Indebtedness, dividend
or other obligation of any other Person (the "primary obligor")
in any manner, whether directly or indirectly, including, without
limitation, all obligations incurred through an agreement,
contingent or otherwise, by such Person: (a) to purchase such
Indebtedness or obligation or any property or assets constituting
security therefor, (b) to advance or supply funds (i) for the
purchase or payment of such Indebtedness or obligation or (ii) to
maintain working capital or other balance sheet condition or
otherwise to advance or make available funds for the purchase or
payment of such Indebtedness or obligation, (c) to lease property
or to purchase securities or other property or services primarily
for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of the primary obligor to make payment
of the Indebtedness or obligation or (d) otherwise to assure the
owner of the Indebtedness or obligation of the primary obligor
against loss in respect thereof; provided, however, that the
obligation described in clause (c) shall not include
(i) obligations of a buyer under an agreement with a seller to
purchase goods or services entered into in the ordinary course of
such buyer's and seller's businesses unless such agreement
requires that such buyer make payment whether or not delivery is
ever made of such goods or services and (ii) remarketing
agreements where the remaining debt on an aircraft does not
exceed the aircraft's net book value, determined in accordance
with industry standards, except that clause (c) shall apply to
the amount of remaining debt under a remarketing agreement that
exceeds the net book value of the aircraft. For the purposes of
all computations made under this Agreement, a Guaranty in respect
of any Indebtedness for borrowed money shall be deemed to be
Indebtedness equal to the principal amount of such Indebtedness
for borrowed money which has been guaranteed, and a Guaranty in
respect of any other obligation or liability or any dividend
shall be deemed to be Indebtedness equal to the maximum aggregate
amount of such obligation, liability or dividend.
Indebtedness of any Person means and includes all
obligations of such Person which in accordance with generally
accepted accounting principles in the United States shall be
classified upon a balance sheet of such Person as liabilities of
such Person, and in any event shall include all:
(a) obligations of such Person for borrowed money or
which have been incurred in connection with the acquisition
of property or assets (other than security and other
deposits on flight equipment);
(b) obligations secured by any Lien or other charge
upon property or assets owned by such Person, even though
such Person has not assumed or become liable for the payment
of such obligations;
(c) obligations created or arising under any
conditional sale, or other title retention agreement with
respect to property acquired by such Person, notwithstanding
the fact that the rights and remedies of the seller, lender
or lessor under such agreement in the event of default are
limited to repossession or sale of property;
(d) Capitalized Rentals of such Person under any
Capitalized Lease;
(e) obligations evidenced by bonds, debentures, notes
or other similar instruments; and
(f) Guaranties by such Person to the extent required
pursuant to the definition thereof.
Indemnified Liabilities - see Section 13.6.
Investment means any investment, made in cash or by
delivery of any kind of property or asset, in any Person, whether
(i) by acquisition of (x) shares of stock or similar interest,
(y) Indebtedness or (z) other obligation or security or (ii) by
loan, advance or capital contribution, or otherwise. For
purposes of this Agreement, Investment shall exclude any notes
receivable and any finance or sales- type leases entered into by
the Company or any of its Subsidiaries in the ordinary course of
business. The amount of any Investment shall be the original
cost of such Investment plus the cost of all additions thereto
and minus the amount of any portion of such Investment repaid to
such Person in cash as a return of capital, but without any other
adjustment for increases or decreases in value, or write- ups,
write-downs or write-offs with respect to such Investment.
LIBOR means with respect to any Loan Period the rate
per annum (rounded to the nearest 1/16 of 1% or, if there is no
nearest 1/16 of 1%, to the next higher 1/16 of 1%), determined
pursuant to the following formula:
Base LIBOR
-----------------------------------
LIBOR = (1 - Eurodollar Reserve Percentage)
LIBOR Rate means (i) with respect to Committed Loans
that are LIBOR Rate Loans, LIBOR plus the applicable rate margin
set forth in Schedule II and (ii) with respect to Bid Loans that
are LIBOR Rate Loans, LIBOR plus or minus the rate margin set
forth in a Bid for a particular Bid Loan amount and a particular
Loan Period.
LIBOR Rate Loan means any Loan which bears interest at
a LIBOR Rate.
Lien means any mortgage, pledge, lien, security
interest or other charge, encumbrance or preferential
arrangement, including the retained security title of a
conditional vendor or lessor.
Litigation Actions means all litigation, claims and
arbitration proceedings, proceedings before any Governmental
Authority or investigations which are pending or, to the
knowledge of the Company, threatened against, or affecting, the
Company or any Subsidiary.
Loan Period means (i) with respect to any Absolute Rate
Loan, the period commencing on such Loan's Funding Date and
ending not less than 14 days thereafter nor more than 183 days
thereafter as specified in the Bid Loan Request related to such
Bid Loan, (ii) with respect to any LIBOR Rate Loan, the period
commencing on such Loan's Funding Date and ending 1, 2, 3 or 6
months thereafter as selected by the Company pursuant to
Section 3.2(a) or specified in the Bid Loan Request, as the case
may be and (iii) with respect to any CD Rate Loan, the period
commencing on such Loan's Funding Date and ending 30, 60, 90 or
180 days thereafter as selected by the Company pursuant to
Section 3.2(a); provided, however, that
(a) if a Loan Period would otherwise end on a day
which is not a Business Day, such Loan Period shall end on
the next succeeding Business Day (unless, in the case of a
LIBOR Rate Loan, such next succeeding Business Day would
fall in the next succeeding calendar month, in which case
such Loan Period shall end on the next preceding Business
Day);
(b) in the case of a Loan Period for any LIBOR Rate
Loan, if there exists no day numerically corresponding to
the day such Loan was made in the month in which the last
day of such Loan Period would otherwise fall, such Loan
Period shall end on the last Business Day of such month; and
(c) on the date of the making of any Loan by a Bank,
the Loan Period for such Loan shall not extend beyond the
then-scheduled Termination Date for such Bank.
Loans means, collectively, the Bid Loans and the
Committed Loans and, individually, any Bid Loan or Committed
Loan.
Material Adverse Effect shall mean (i) any material
adverse effect on the business, properties, condition (financial
or otherwise) or operations, present or prospective, of the
Company and its Subsidiaries, taken as a whole since any stated
reference date or from and after the date of determination, as
the case may be, (ii) any material adverse effect on the ability
of the Company to perform its obligations hereunder and under the
Notes or (iii) any adverse effect on the legality, validity,
binding effect or enforceability of any material provision of
this Agreement or any Note.
Multiemployer Plan has the meaning assigned to such
term in section 3(37) of ERISA.
New Litigation - see Section 10.1.3.
Notes means, collectively, the Bid Notes and the
Committed Notes; and Note means any individual Bid Note or
Committed Note.
Notice of Competitive Bid Borrowing - see
Section 2.2(a).
Notice Office means the New York Branch of UBS which,
as of the date hereof, is 299 Park Avenue, New York, New York
10071-0026, Attn: James Broadus, Telecopy Number (212) 821-3259;
Telephone (212) 821-3227.
Operating Lease means any lease other than a
Capitalized Lease; provided, however, that leases with an
original term of less than one year shall not be Operating
Leases.
Operating Lease Rental of an Operating Lease means, as
of the date of any determination thereof, the net present value
of the aggregate unpaid amount due at such date and to become due
from the Company or any Subsidiary, on a consolidated basis, as
lessee under such Operating Lease discounted at such lessee's
incremental borrowing rate or if the interest rate implicit in
such Operating Lease can be practically determined and is
smaller, at such interest rate, such present value and interest
rate being determined in accordance with standard financial
practice and such borrowing rate being determined in accordance
with FASB 13, excluding from such aggregate amount all amounts
which are in excess of the minimum aggregate unpaid amount due at
such date and to become due from such lessee under such Operating
Lease assuming that such lessee would take or fail to take all
actions with respect to all termination, renewal, purchase and
other options as would produce the least amount becoming due
under such Operating Lease, and "Operating Lease Rentals" means,
as of the date of any determination, the aggregate Operating
Lease Rental of all Operating Leases as of such date.
Participant - see Section 13.4.2.
Payment Office means the New York Branch of UBS which,
as of the date hereof, is at 299 Park Avenue, New York, New York
10071-0026 Attn: James Broadus.
PBGC means the Pension Benefit Guaranty Corporation and
any entity succeeding to any or all of its functions under ERISA.
Percentage means as to any Bank the ratio, expressed as
a percentage, that such Bank's Commitment as set forth opposite
such Bank's name on Schedule I, as periodically revised in
accordance with Section 13.4 or 13.8, bears to the Aggregate
Commitment or, if the Commitments have been terminated, the
ratio, expressed as a percentage, that the aggregate principal
amount of such Bank's outstanding Loans bears to the aggregate
principal amount of all outstanding Loans.
Permitted Acquisitions means purchases or other
acquisitions, or Investments by acquisition of shares of stock,
for which cumulatively and in the aggregate since the date hereof
the Company has not given consideration in value exceeding
$100,000,000.
Person means an individual or a corporation,
partnership, trust, incorporated or unincorporated association,
joint venture, joint stock company, government (or an agency or
political subdivision thereof) or other entity of any kind.
Plan means, at any date, any employee pension benefit
plan (as defined in section 3(2) of ERISA) which is subject to
Title IV of ERISA (other than a Multiemployer Plan) and to which
the Company or any ERISA Affiliate may have any liability,
including any liability by reason of having been a substantial
employer within the meaning of section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to
be a contributing sponsor under section 4069 of ERISA.
Prime Rate means the rate of interest publicly
announced from time to time by the New York Branch of UBS as its
prime commercial lending rate.
Reference Banks means UBS, The Bank of Nova Scotia,
Commerzbank AG and The Bank of New York.
Related Party means, for purposes of Section 9.17 only,
any Person (other than a Subsidiary):
(i) which directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under
common control with, the Company;
(ii) which beneficially owns or holds five percent or
more of the equity interest of the Company; or
(iii) twenty percent or more of the equity interest of
which is beneficially owned or held by the Company or a
Subsidiary.
The term "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
Reportable Event has the meaning assigned to such term
in section 4043 of ERISA.
Required Banks means Banks having an aggregate
Percentage of 66 2/3% or more.
Reserve Percentage means for any day, that percentage,
expressed as a decimal, which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including any marginal, supplemental or emergency
reserve requirements) for a member bank of the Federal Reserve
System in New York City with deposits exceeding one billion
dollars in respect of new non-personal time deposits in dollars
in New York City having a maturity comparable to the relevant
Loan Period and in an amount of $100,000 or more. The CD Rate
shall be adjusted automatically on and as of the effective date
of any change in the Reserve Percentage.
Significant Subsidiary means any Subsidiary which is so
defined pursuant to Rule 1-02 of Regulation S-X promulgated by
the Securities and Exchange Commission.
Submission Deadline - see Section 2.2(b).
Subsidiary means any Person of which or in which the
Company and its other Subsidiaries own directly or indirectly 50%
or more of:
(a) the combined voting power of all classes of stock
having general voting power under ordinary circumstances to
elect a majority of the board of directors of such Person,
if it is a corporation;
(b) the capital interest or profits interest of such
Person, if it is a partnership, joint venture or similar
entity; or
(c) the beneficial interest of such Person, if it is a
trust, association or other unincorporated organization;
provided, however, that so long as (i) the Company continues to
own not more than 50% of Pacific Ocean Leasing, Ltd. and
(ii) Pacific Ocean Leasing, Ltd. does not materially alter the
manner in which it conducts the business in which it is currently
engaged, Pacific Ocean Leasing, Ltd. shall not be considered a
Subsidiary within the foregoing definition for purposes of this
Agreement.
Successor Bank - see Section 13.8(c).
Taxes with respect to any Person means income, excise
and other taxes, and all assessments, imposts, duties and other
governmental charges or levies, imposed upon such Person, its
income or any of its properties, franchises or assets by any
Governmental Authority.
Terminating Bank - see Section 13.8(c).
Termination Date means, with respect to any Bank, the
earliest to occur of (i) the third anniversary of the date of
this Agreement or such later date as may be agreed to by such
Bank pursuant to Section 13.8(a), (ii) the date on which the
Commitments shall terminate pursuant to Section 11.2 or the
Commitments shall be reduced to zero pursuant to Section 5.1 and
(iii) the date specified as such Bank's Termination Date pursuant
to Section 13.8(b), or, if in any case (other than clause (ii)
above) such day is not a Business Day, the next succeeding
Business Day; in all cases, subject to the provisions of
Section 13.8(d).
UBS - see Preamble.
Unmatured Event of Default means any event which if it
continues uncured will, with lapse of time or notice or lapse of
time and notice, constitute an Event of Default.
Wholly-owned Subsidiary means any Person of which or in
which the Company and its other Wholly-owned Subsidiaries own
directly or indirectly 100% of:
(a) the issued and outstanding shares of stock (except
shares required as directors' qualifying shares);
(b) the capital interest or profits interest of such
Person, if it is a partnership, joint venture or similar
entity; or
(c) the beneficial interest of such Person, if it is a
trust, association or other unincorporated organization.
SECTION 2. BID LOANS AND BID NOTES.
Section 2.1. Making of Bid Loans. On the terms and
subject to the conditions of this Agreement, each Bank, severally
and for itself alone, may (but is not obligated to) make Bid
Loans to the Company from time to time on or after the date
hereof and prior to the date which is the fourteenth day
preceding such Bank's Termination Date in amounts equal to such
Bank's Bids that have been accepted as provided in
Section 2.2(c); provided that the aggregate principal amount of
all outstanding Loans shall not at any time exceed the then
Aggregate Commitment.
Section 2.2. Procedure for Bid Loans.
(a) Bid Loan Request. Whenever the Company desires to
incur a competitive bid borrowing (a "Bid Borrowing"), it shall
give the Agent written notice (or telephonic notice promptly
confirmed in writing), such notice to be delivered to the Agent
at its Notice Office no later than 12:00 Noon (New York City
time), at least three Business Days prior to any proposed LIBOR
Rate Loan and at least one Business Day prior to any proposed
Absolute Rate Loan. Each such notice shall be substantially in
the form of Exhibit A hereto (each a "Notice of Competitive Bid
Borrowing"), and shall specify in each case (i) the date of such
proposed Bid Borrowing (which shall be a Business Day), (ii) the
aggregate amount of the proposed Bid Borrowing, (iii) whether the
proposed Bid Borrowing is to be an Absolute Rate Loan or a LIBOR
Rate Loan and the Loan Period, (iv) the maturity date for
repayment of each Bid Loan to be made as part of such borrowing
(which maturity date shall not be earlier than one month after
the date of any proposed LIBOR Rate Loan or 14 days after the
date of any proposed Absolute Rate Loan or later than the
earliest to occur of (x) six months after the date of such
proposed Bid Loan, (y) the Termination Date and (z) if the
proposed Bid Loan has an interest rate that is the LIBOR Rate,
the last day of the proposed Loan Period), (v) the interest
payment date or dates relating thereto, (vi) the account of the
Company to which the proceeds of such Bid Borrowing are to be
credited and (vii) any other terms to be applicable to such Bid
Borrowing. The Agent shall promptly give each Bank written
notice (or telephonic notice promptly confirmed in writing) of
each such request for a Bid Borrowing received by it from the
Company. Each Notice of Competitive Bid Borrowing shall
contemplate Bid Loans in a minimum aggregate principal amount of
$10,000,000 or a higher integral multiple of $1,000,000, not to
exceed, however, the excess of the then Aggregate Commitment over
the aggregate principal amount of all outstanding Loans,
calculated as of the relevant Funding Date, assuming that the
Company will pay, when due, all Loans maturing on or prior to
such Funding Date (the "Available Commitment").
(b) Bidding Procedure. Each Bank shall, if in its
sole discretion it elects to do so, irrevocably offer to make one
or more Bid Loans to the Company as part of such proposed Bid
Borrowing at a rate or rates of interest specified by such Bank
in its sole discretion and determined by such Bank independently
of each other Bank, by notifying by telephone confirmed in
writing to the Agent at its Notice Office (which shall give
prompt notice thereof to the Company), before 10:00 a.m. (New
York City time) on the date (the "Submission Deadline") that is
(x) in the case of a proposed Absolute Rate Loan, the same day as
the date of such proposed Bid Loan and (y) in the case of a
proposed LIBOR Rate Loan, two Business Days before, the date of
such proposed Bid Loan, of the minimum amount and maximum amount
of each Bid Loan that such Bank would be willing to make as part
of such proposed Bid Borrowing (which amounts may, subject to the
proviso in Section 2.1, exceed such Bank's Commitment), the rate
or rates of interest therefor and such Bank's lending office with
respect to such Bid Loan; provided that if the Agent in its
capacity as a Bank shall, in its sole discretion, elect to make
any such offer, it shall notify the Company of such offer before
8:30 a.m. (New York City time) on the Submission Deadline.
(c) Acceptance of Bids. The Company shall, in turn,
before 10:30 a.m. (New York City time) on the Submission
Deadline, either:
(i) cancel such proposed Bid Borrowing by giving
the Agent notice to that effect; or
(ii) accept (such acceptance to be irrevocable)
one or more of the offers made by any Bank or Banks
pursuant to clause (b) above by giving notice (in
writing or by telephone confirmed in writing) to the
Agent of the amount of each Bid Loan (which amount
shall be equal to or greater than the minimum amount,
and equal to or less than the maximum amount, notified
to the Company by the Agent on behalf of such Bank for
such Bid Borrowing pursuant to clause (b) above) to be
made by such Bank as part of such Bid Borrowing, and
reject any remaining offers made by any Bank pursuant
to clause (b) above by giving the Agent notice to that
effect; provided that for any maturity date acceptance
of offers may only be made on the basis of ascending
Absolute Rates (in the case of an Absolute Rate Loan)
or floating rates (in the case of a LIBOR Rate Loan),
in each case commencing with the lowest rate so offered
and only as to offers made in conformity with the terms
hereof; provided further, however, if offers are made
by two or more Banks at the same rate or rates and
acceptance of all such equal offers would result in a
greater principal amount of Bid Loans being accepted
than the aggregate principal amount requested by the
Company, the Company shall have the right to accept one
or more of such equal offers in their entirety and
reject the other equal offer or offers or to allocate
acceptance among all such equal offers (but giving
effect to the minimum and maximum amounts specified for
each such offer pursuant to clause (b) above), as the
Company may elect in its sole discretion. For the
avoidance of doubt, the Company may accept offers whose
aggregate principal amount is greater than or less than
the requested aggregate amount as specified in the
related Notice of Competitive Bid Borrowing, subject to
the proviso in Section 2.1.
(d) Cancellation of Bid Borrowing. If the Company
notifies the Agent that such proposed Bid Borrowing is cancelled
pursuant to clause (c)(i) above, the Agent shall give prompt
notice thereof to the Banks and such Bid Borrowing shall not be
made.
(e) Notification of Acceptance. If the Company
accepts one or more of the offers made by any Bank or Banks
pursuant to clause (c)(ii) above, the Agent shall in turn
promptly notify (x) each Bank that has made an offer as described
in clause (b) above, of the date and aggregate amount of such Bid
Borrowing and whether or not any offer or offers made by such
Bank pursuant to clause (b) above have been accepted by the
Company and (y) each Bank that is to make a Bid Loan as part of
such Bid Borrowing, of the amount of each Bid Loan to be made by
such Bank as part of such Bid Borrowing.
(f) Reliance. The Agent may rely and act upon notice
given by telephone by individuals reasonably believed by the
Agent to be those designated to the Agent by the Company or by
any Bank in writing from time to time, without waiting for
receipt of written confirmation thereof, and the Company hereby
agrees to indemnify and hold harmless the Agent from and against
any and all losses, costs, expenses, damages, claims, actions or
other proceedings relating to such reliance.
Section 2.3. Funding of Bid Loans. No later than
1:00 p.m. (New York City time) on the date specified in each
Notice of Competitive Bid Borrowing, each Bank will make
available the Bid Loan, if any, to be made by such Bank as part
of the Bid Borrowing requested to be made on such date in the
manner provided below. All amounts shall be made available to
the Agent in Dollars and immediately available funds at the
Payment Office of the Agent and the Agent promptly will make
available to the Company at its account specified in the relevant
Notice of Competitive Bid Borrowing the aggregate of the amounts
so made available in the type of funds received. Unless the
Agent shall have been notified by any Bank which has submitted a
bid pursuant to Section 2.2(b) prior to the date of the proposed
Bid Borrowing that such Bank does not intend to make available to
the Agent its portion, if any, of the Bid Borrowing to be made on
such date, the Agent may assume that such Bank has made such
amount available to the Agent on such date of Bid Borrowing, and
the Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to
the Company a corresponding amount.
Section 2.4. Bid Notes. The Bid Loans of each Bank
shall be evidenced by a Bid Note payable to the order of such
Bank in the original principal amount of the Aggregate
Commitment. Each Bank shall record in its records, or at its
option on the schedule attached to its Bid Note, the date and
amount of each Bid Loan made by such Bank, each repayment
thereof, and the dates on which the Loan Period for such Loan
shall begin and end. The aggregate unpaid principal amount so
recorded shall be rebuttable presumptive evidence of the
principal amount owing and unpaid on such Note. The failure to
so record or any error in so recording any such amount or any
payment thereof shall not, however, limit or otherwise affect the
obligations of the Company hereunder or under such Bid Note to
repay the principal amount of each Bid Loan together with all
interest accruing thereon.
SECTION 3. COMMITTED LOANS AND NOTES.
Section 3.1. Agreement to Make Committed Loans. On the
terms and subject to the conditions of this Agreement, each Bank,
severally and for itself alone, agrees to make Loans (herein
collectively called "Committed Loans" and individually each
called a "Committed Loan") on a revolving basis from time to time
before such Bank's Termination Date in such Bank's Percentage of
such aggregate amounts as the Company may from time to time
request as provided in Section 3.2; provided that (a) the
aggregate principal amount of all outstanding Committed Loans of
any Bank shall not at any time exceed the amount set forth
opposite such Bank's name on Schedule I (as reduced in accordance
with Section 5.1, 13.4 or 13.8) and (b) the aggregate principal
amount of all outstanding Committed Loans of all Banks plus the
aggregate principal amount of all outstanding Bid Loans of all
Banks shall not at any time exceed the then Aggregate Commitment.
Section 3.2. Procedure for Committed Loans.
(a) Committed Loan Requests. The Company shall give
the Agent irrevocable telephonic notice at the Notice Office
(promptly confirmed in writing on the same day), not later than
10:30 a.m., New York City time, (i) at least three Business Days
prior to the Funding Date in the case of LIBOR Rate Loans,
(ii) at least two Business Days prior to the Funding Date in the
case of CD Rate Loans or (iii) on the Funding Date in the case of
Base Rate Loans, of each requested Committed Loan, and the Agent
shall promptly advise each Bank thereof and, in the case of a
LIBOR Rate Loan or a CD Rate Loan, request each Reference Bank to
notify the Agent of its applicable rate (as contemplated in the
definitions of Base LIBOR and CD Base Rate). Each such notice to
the Agent (a "Committed Loan Request") shall be substantially in
the form of Exhibit C and shall specify (i) the Funding Date
(which shall be a Business Day), (ii) the aggregate amount of the
Loans requested (in an amount permitted under clause (b) below),
(iii) whether each Loan shall be a LIBOR Rate Loan, a CD Rate
Loan or a Base Rate Loan and (iv) except for a Base Rate Loan,
the Loan Period therefor (subject to the limitations set forth in
the definition of Loan Period).
(b) Amount and Increments of Committed Loans. Each
Committed Loan Request shall contemplate Committed Loans in a
minimum aggregate amount of $25,000,000 or a higher integral
multiple of $1,000,000, not to exceed in the aggregate (for all
requested Committed Loans) the Available Commitment.
(c) Funding of Committed Loans.
(i) Not later than 1:30 p.m., New York City time, on
the Funding Date of a Committed Loan, each Bank shall,
subject to this Section 3.2(c), provide the Agent at its
Notice Office with immediately available funds covering such
Bank's Committed Loan (provided that a Bank's obligation to
provide funds to the Agent shall be deemed satisfied by such
Bank's delivery to the Agent at its Notice Office not later
than 1:30 p.m., New York City time, of a federal reserve
wire confirmation number covering the proceeds of such
Bank's Committed Loan) and the Agent shall pay over such
funds to the Company not later than 2:00 p.m., New York City
time, on such day if the Agent shall have received the
documents required under Section 10 with respect to such
Loan and the other conditions precedent to the making of
such Loan shall have been satisfied not later than
10:00 a.m., New York City time, on such day. If the Agent
does not receive such documents or such other conditions
precedent have not been satisfied prior to such time, then
(A) the Agent shall not pay over such funds to the Company,
(B) the Company's Committed Loan Request related to such
Loan shall be deemed cancelled in its entirety, (C) in the
case of Committed Loan Requests relative to LIBOR Rate Loans
and CD Rate Loans, the Company shall be liable to each Bank
in accordance with Section 7.4(b) and (D) the Agent shall
return the amount previously provided to the Agent by each
Bank on the next following Business Day.
(ii) The Company agrees, notwithstanding its previous
delivery of any documents required under Section 10 with
respect to a particular Loan, immediately to notify the
Agent of any failure by it to satisfy the conditions
precedent to the making of such Loan. The Agent shall be
entitled to assume, after it has received each of the
documents required under Section 10 with respect to a
particular Loan, that each of the conditions precedent to
the making of such Loan has been satisfied absent actual
knowledge to the contrary received by the Agent prior to the
time of the receipt of such documents. Unless the Agent
shall have notified the Banks prior to 10:30 a.m., New York
City time, on the Funding Date of any Loan that the Agent
has actual knowledge that the conditions precedent to the
making of such Loan have not been satisfied, the Banks shall
be entitled to assume that such conditions precedent have
been satisfied.
(d) Repayment of Loans. If any Bank is to make a
Committed Loan hereunder on a day on which the Company is to
repay (or has elected to prepay, pursuant to Section 5.2) all or
any part of any outstanding Loan held by such Bank, the proceeds
of such new Committed Loan shall be applied to make such
repayment and only an amount equal to the positive difference, if
any, between the amount being borrowed and the amount being
repaid shall be requested by the Agent to be made available by
such Bank to the Agent as provided in Section 3.2(c).
Section 3.3. Maturity of Committed Loans. Except for
a Base Rate Loan, which shall mature on the Termination Date, a
Committed Loan made by a Bank shall mature on the last day of the
Loan Period applicable to such Committed Loan, but in no event
later than the Termination Date for such Bank.
Section 3.4. Committed Notes. The Committed Loans of
each Bank shall be evidenced by a Committed Note payable to the
order of such Bank in the original principal amount of such
Bank's Commitment. Each Bank shall record in its records, or at
its option on the schedule attached to its Committed Note, the
date and amount of each Loan made by such Bank thereunder, each
repayment or prepayment thereof, and, if applicable, the dates on
which the Loan Period for such Loan shall begin and end. The
aggregate unpaid principal amount so recorded shall be rebuttable
presumptive evidence of the principal amount owing and unpaid on
such Note. The failure to so record or any error in so recording
any such amount or any payment thereof shall not, however, limit
or otherwise affect the obligations of the Company hereunder or
under such Committed Note to repay the principal amount of each
Committed Loan together with all interest accruing thereon.
SECTION 4. INTEREST AND FEES.
Section 4.1. Interest Rates. The Company hereby
promises to pay interest on the unpaid principal amount of each
Loan for the period commencing on the Funding Date until such
Loan is paid in full, as follows:
(a) if such Loan is a Bid Loan, at a rate per annum
equal to the Absolute Rate or the LIBOR Rate, as applicable,
offered by the applicable Bank and accepted by the Company
for such Bid Loan;
(b) if such Loan is a Base Rate Loan, at a rate per
annum equal to the Base Rate from time to time in effect;
(c) if such Loan is a Committed Loan that is a LIBOR
Rate Loan, at a rate per annum equal to the LIBOR Rate
applicable to the Loan Period for such Loan; and
(d) if such Loan is a CD Rate Loan, at a rate per
annum equal to the CD Rate applicable to the Loan Period for
such Loan;
provided, however, that after the maturity of any Loan (whether
by acceleration or otherwise), such Loan shall bear interest on
the unpaid principal amount thereof at a rate per annum
(calculated on the basis of a 360-day year for the actual number
of days involved) equal to the Base Rate from time to time in
effect (but not less than the interest rate in effect for such
Loan immediately prior to maturity) plus 1% per annum.
Section 4.2. Interest Payment Dates. Except for Base
Rate Loans, as to which accrued interest shall be payable on the
last day of each calendar quarter and on the Termination Date,
accrued interest on each Loan shall be payable in arrears on the
last day of the Loan Period therefor and (i) with respect to each
LIBOR Rate Loan with a Loan Period of six months, on the day that
is three months after the first day of such Loan Period (or, if
there is no day in such third month numerically corresponding to
such first day of the Loan Period, on the last Business Day of
such month), (ii) with respect to each CD Rate Loan with a Loan
Period of 180 days, on the day that is 90 days after the first
day of such Loan Period and (iii) with respect to each Absolute
Rate Loan with a Loan Period exceeding 90 days, on the day that
is 90 days after the first day of such Loan Period. After the
maturity of any Loan, accrued interest on such Loan shall be
payable on demand. If any interest payment date falls on a day
that is not a Business Day, such interest payment date shall be
postponed to the next succeeding Business Day and the interest
paid shall cover the period of postponement (except that if the
Loan is a LIBOR Rate Loan and the next succeeding Business Day
falls in the next succeeding calendar month, such interest
payment date shall be the immediately preceding Business Day).
Section 4.3. Setting and Notice of Committed Loan
Rates. The applicable interest rate for each Committed Loan
hereunder shall be determined by the Agent and notice thereof
shall be given by the Agent promptly to the Company and to each
Bank. Each determination of the applicable interest rate by the
Agent shall be conclusive and binding upon the parties hereto in
the absence of demonstrable error.
In the case of LIBOR Rate Loans and CD Rate Loans, each
Reference Bank agrees to use its best efforts to notify the Agent
in a timely fashion of its applicable rate after the Agent's
request therefor under Section 2.2(a) and Section 3.2(a) (as
contemplated in the definitions of Base LIBOR and CD Base Rate).
If as to any Loan Period any one or more of the Reference Banks
is unable or for any reason fails to notify the Agent of its
applicable rate by 11:30 a.m., New York City time, two Business
Days before the Funding Date with respect to a LIBOR Rate Loan or
by 10:30 a.m., New York City time, on the Funding Date with
respect to a CD Rate Loan, then the applicable LIBOR Rate or CD
Rate, as the case may be, shall be determined on the basis of the
rate or rates of which the Agent is given notice by the remaining
Reference Bank or Banks by such time. If none of the Reference
Banks notifies the Agent of the applicable rate prior to
11:30 a.m., New York City time, two Business Days before the
Funding Date with respect to the LIBOR Rate or by 10:30 a.m.,
New York City time, on the Funding Date with respect to the CD
Rate, then (i) the Agent shall promptly notify the other parties
thereof and (ii) at the option of the Company the Committed Loan
Request delivered by the Company pursuant to Section 3.2(a) with
respect to such Funding Date shall be cancelled or shall be
deemed to have specified a Base Rate Loan.
The Agent shall, upon written request of the Company or
any Bank, deliver to the Company or such Bank a statement showing
the computations used by the Agent in determining the interest
rate applicable to any LIBOR Rate Loan or CD Rate Loan.
Section 4.4. Facility Fee. The Company agrees to pay
to the Agent for the accounts of the Banks pro rata in accordance
with their respective Percentages an annual facility fee computed
by multiplying the average daily amount of the Aggregate
Commitment (whether used or unused) by the applicable percentage
determined with respect to such facility fee in accordance with
Schedule II hereto. Such fee shall be payable quarterly in
arrears on the last Business Day of March, June, September and
December of each year (beginning with the last Business Day of
March, 1995) until the Commitments have expired or have been
terminated and on the date of such expiration or termination
(and, in the case of any Terminating Bank, such Bank's
Termination Date), in each case for the period then ending for
which such facility fee has not previously been paid.
Section 4.5. Agent's Fees. The Company agrees
promptly to pay to the Agent such fees as may be agreed from time
to time by the Company and the Agent.
Section 4.6. Utilization Fee. The Company agrees to
pay to the Agent for the accounts of the Banks pro rata in
accordance with their respective Percentages an annual
utilization fee computed by multiplying the average daily amount
of Committed Loans outstanding on each day by the applicable
percentage specified with respect to such utilization fee on
Schedule II hereto for each day on which the ratio (expressed as
a percentage) of the aggregate principal amount of Committed
Loans outstanding to the then effective Aggregate Commitment
exceeds 50%. Such utilization fee shall be payable quarterly in
arrears on the last Business Day of March, June, September and
December of each year (beginning with the last Business Day of
March, 1995) until all Commitments have expired or have been
terminated and on the date of such expiration or termination
(and, in the case of any Terminating Bank, such Bank's
Termination Date), in each case for the period then ending for
which such utilization fee has not previously been paid.
Section 4.7. Computation of Interest and Fees.
Interest on LIBOR Rate Loans, CD Rate Loans and Base Rate Loans
where the Base Rate is calculated in reference to the Federal
Funds Rate, and facility and utilization fees shall be computed
for the actual number of days elapsed on the basis of a 360-day
year; interest on Base Rate Loans where the Base Rate is
calculated in reference to the Prime Rate shall be computed for
the actual number of days elapsed on the basis of a 365/366 day
year, as the case may be. The interest rate applicable to each
LIBOR Rate Loan, CD Rate Loan and Base Rate Loan, and (to the
extent applicable) after the maturity of any other type of Loan,
the interest rate applicable to such Loan, shall change
simultaneously with each change in the LIBOR Rate, the CD Rate or
the Base Rate, as applicable.
SECTION 5. REDUCTION OR TERMINATION OF THE
COMMITMENTS; PREPAYMENTS.
Section 5.1. Voluntary Termination or Reduction of the
Commitments. The Company may at any time on at least 5 days'
prior irrevocable notice received by the Agent (which shall
promptly on the same day or on the next Business Day advise each
Bank thereof) permanently reduce the amount of the Commitments
(such reduction to be pro rata among the Banks according to their
respective Percentages) to an amount not less than the aggregate
principal amount of all outstanding Loans. Any such reduction
shall be in the amount of $5,000,000 or an integral multiple
thereof. Concurrently with any such reduction, the Company shall
prepay the principal of any Committed Loans outstanding to the
extent that the aggregate amount of such Loans outstanding shall
then exceed the Aggregate Commitment, as so reduced. The Company
may from time to time on like irrevocable notice terminate the
Commitments upon payment in full of all Loans, all interest
accrued thereon, all fees and all other obligations of the
Company hereunder; provided, however, that the Company may not at
any time terminate the Commitments if any Bid Loan is outstanding
(unless the holder of each such outstanding Bid Loan has given
its prior written consent to the concurrent repayment of such Bid
Loan).
Section 5.2. Voluntary Prepayments. The Company may
voluntarily prepay Loans (other than Bid Loans, which may only be
prepaid with the prior written consent of the holder thereof)
without premium or penalty, except as may be required pursuant to
subsection (e) below, in whole or in part, provided that (a) each
prepayment shall be in an aggregate principal amount of
$10,000,000 or an integral multiple of $1,000,000 in excess
thereof, (b) except for the prepayment of the aggregate amount of
all Loans outstanding, no such prepayment shall result in there
being less than $10,000,000 in Loans outstanding in the
aggregate, (c) the Company shall give the Agent at its Notice
Office (which shall promptly advise each Bank) not less than
three Business Days' prior notice thereof specifying the Loans to
be prepaid and the date and amount of prepayment, (d) any
prepayment of principal of any Loan shall include accrued
interest to the date of prepayment on the principal amount being
prepaid and (e) any prepayment of a LIBOR Rate Loan or a CD Rate
Loan shall be subject to the provisions of Section 7.4.
SECTION 6. MAKING AND PRORATION OF PAYMENTS;
SET-OFF; TAXES.
Section 6.1. Making of Payments. Except as provided
in Section 3.2(d) all payments (including those made pursuant to
Sections 5.1 and 5.2) of principal of, or interest on, the Loans
and all payments of fees shall be made by the Company to the
Agent in immediately available funds at its Payment Office not
later than 12:00 Noon, New York City time, on the date due; and
funds received after that hour shall be deemed to have been
received by the Agent on the next following Business Day. The
Agent shall promptly remit to each Bank or other holder of a Note
its share (if any) of each such payment. All payments under
Section 7 shall be made by the Company directly to the Persons
entitled thereto.
Section 6.2. Pro Rata Treatment; Sharing.
(a) Except as required pursuant to Section 7 or
Section 13.8, each payment or prepayment of principal of any
Committed Loans, each payment of interest on the Committed Loans,
and each payment of the facility fee or the utilization fee shall
be allocated pro rata among the Banks in accordance with their
respective Percentages. Each payment of principal of any Bid
Borrowing shall be allocated pro rata among the Banks
participating in such Bid Borrowing in accordance with the
respective principal amounts of their outstanding Bid Loans
comprising such Bid Borrowing. Each payment of interest on any
Bid Borrowing shall be allocated pro rata among the Banks
participating in such Bid Borrowing in accordance with the
respective amounts of accrued and unpaid interest on their
outstanding Bid Loans comprising such Bid Borrowing.
(b) If any Bank or other holder of a Committed Loan
shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of offset or otherwise) on account of
principal of, interest on or fees or other amounts with respect
to any Committed Loan in excess of the share of payments and
other recoveries (exclusive of payments or recoveries under
Section 7 or pursuant to Section 13.8) such Bank or other holder
would have received if such payment had been distributed pursuant
to the provisions of Section 6.2(a), such Bank or other holder
shall purchase from the other Banks or holders, in a manner to be
specified by the Agent, such participations in the Committed
Loans held by them as shall be necessary so that all such
payments of principal and interest with respect to the Committed
Loans shall be shared by the Banks and other holders pro rata in
accordance with their respective Percentages; provided, however,
that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Bank or
holder, the purchase shall be rescinded and the purchase price
restored to the extent of such recovery, but without interest.
(c) If any Bank or other holder of a Bid Loan shall
obtain any payment or other recovery (whether voluntary,
involuntary, by application of offset or otherwise) on account of
principal of, interest on or fees or other amounts with respect
to any Bid Loan in excess of the share of payments and other
recoveries (exclusive of payments or recoveries pursuant to
Section 7 or Section 13.8) such Bank or other holder would have
received if such payment had been distributed pursuant to the
provisions of Section 6.2(a), such Bank or other holder shall
purchase from the other Banks or holders participating in such
Bid Borrowing, in a manner to be specified by the Agent, such
participations in the Bid Loans held by them as shall be
necessary so that all such payments of principal and interest
with respect to the Bid Loans shall be shared by the Banks and
other holders participating in such Bid Borrowing in a manner
consistent with Section 6.2(a); provided, however, that if all or
any portion of the excess payment or other recovery is thereafter
recovered from such purchasing Bank or holder, the purchase shall
be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
Section 6.3. Set-off. The Company agrees that the
Agent, each holder of a Note, each Assignee and each Participant
has all rights of set-off and bankers' lien provided by
applicable law, and the Company further agrees that at any time
(i) any amount owing by the Company under this Agreement is due
to any such Person or (ii) any Event of Default exists, each such
Person may apply to the payment of any amount payable hereunder
any and all balances, credits, deposits, accounts or moneys of
the Company then or thereafter with such Person.
Section 6.4. Taxes, etc. (a) All payments made by the
Company to the Agent, any Bank, any Assignee or any Participant
under this Agreement and the Notes shall be made without any set-
off or counterclaim, and free and clear of and without deduction
for or on account of any present or future Taxes now or hereafter
imposed (except to the extent that such withholding or deduction
is compelled by law or results from the breach, by the recipient
of a payment, of its agreement contained in Section 6.4(b) or
would not be required if the representation or warranty contained
in Section 6.4(b) were true), excluding any Taxes generally
assessed on the overall net income of the Agent, any Bank, any
Assignee or any Participant, as the case may be, by the
government or other authority of the country in which the Agent,
such Bank, such Assignee or such Participant is incorporated or
in which its Funding Office or the office through which it is
acting is located. If the Company is compelled by law to make
any such deductions or withholdings it will:
(i) pay to the relevant authorities the full amount
required to be so withheld or deducted;
(ii) except to the extent that such withholding or
deduction results from the breach by the recipient of a
payment of its agreement contained in Section 6.4(b) or
would not be required if the representation or warranty
contained in Section 6.4(b) were true, pay such additional
amounts as may be necessary in order that the net amount
received by the Agent, each Bank, each Assignee and each
Participant after such deductions or withholdings (including
any required deduction or withholding on such additional
amounts) shall equal the amount such payee would have
received had no such deductions or withholdings been made;
and
(iii) promptly forward to the Agent (for delivery to
such payee) an official receipt or other documentation
satisfactory to the Agent evidencing such payment to such
authorities.
Moreover, if any Taxes are directly asserted against the Agent,
any Bank, any Assignee or any Participant, such payee may pay
such Taxes and the Company shall promptly pay such additional
amount (including, without limitation, any penalties, interest or
expenses) as may be necessary in order that the net amount
received by such payee after the payment of such Taxes (including
any Taxes on such additional amount) shall equal the amount such
payee would have received had no such Taxes been asserted. For
purposes of this Section 6.4, a distribution hereunder by the
Agent or any Bank to or for the account of any Bank, Assignee or
Participant shall be deemed to be a payment by the Company. The
Company's agreement under this Section 6.4 shall survive
repayment of the Loans, cancellation of the Notes or any
termination of this Agreement.
(b) In consideration of, and as a condition to, the
Company's undertakings in Section 6.4(a), each Bank (other than a
Bank that is organized and existing under the laws of the United
States of America or any State thereof) agrees to execute and
deliver to the Agent at its Payment Office for delivery to the
Company, before the first scheduled payment date in each year,
two United States Internal Revenue Service Forms 1001 or 4224, or
any successor forms, as appropriate, properly completed and
claiming complete exemption from withholding and deduction of
United States federal Taxes. Each Bank represents and warrants
to the Company that, at the date of this Agreement, or at the
time such Bank becomes a Bank hereunder pursuant to
Section 13.4.1, its Funding Office is entitled to receive
payments of principal and interest hereunder without deduction
for or on account of any Taxes imposed by the United States or
any political subdivision thereof.
SECTION 7. INCREASED COSTS AND SPECIAL PROVISIONS
FOR ABSOLUTE RATE LOANS, LIBOR RATE
LOANS AND CD RATE LOANS.
Section 7.1. Increased Costs. (a) If (i) Regulation D
of the Board of Governors of the Federal Reserve System or
(ii) after the date hereof, the adoption of any applicable law,
rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any
Bank (or any Funding Office of such Bank) with any request or
directive (whether or not having the force of law) of any such
authority, central bank or comparable agency,
(A) shall subject any Bank (or any Funding Office of
such Bank) to any tax, duty or other charge with respect to
its LIBOR Rate Loans, its CD Rate Loans, its Notes or its
obligation to make LIBOR Rate Loans or CD Rate Loans, or
shall change the basis of taxation of payments to any Bank
(or any Funding Office of such Bank) of the principal of or
interest on its LIBOR Rate Loans, its CD Rate Loans or any
other amounts due under this Agreement in respect of its
LIBOR Rate Loans, its CD Rate Loans or its obligation to
make LIBOR Rate Loans or CD Rate Loans (except for changes
in the rate of tax on the overall net income of such Bank or
its Funding Office imposed by any Governmental Authority of
the country in which such Bank is incorporated or in which
such Bank's Funding Office is located);
(B) shall impose, modify or deem applicable any
reserve (including, without limitation, any reserve imposed
by the Board of Governors of the Federal Reserve System, but
excluding any reserve included in the determination of
additional interest pursuant to Section 4.1), special
deposit, assessment (including any assessment for insurance
of deposits) or similar requirement against assets of,
deposits with or for the account of, or credit extended by,
any Bank (or any Funding Office of such Bank); or
(C) shall impose on any Bank (or any Funding Office of
such Bank) any other condition affecting its LIBOR Rate
Loans, its CD Rate Loans, its Notes or its obligation to
make or maintain LIBOR Rate Loans or CD Rate Loans;
and the result of any of the foregoing is to increase the cost to
(or to impose an additional cost on) such Bank (or any Funding
Office of such Bank) of making or maintaining any LIBOR Rate Loan
or CD Rate Loans, or to reduce the amount of any sum received or
receivable by such Bank (or such Bank's Funding Office) under
this Agreement or under its Notes with respect thereto, then
within 10 days after demand by such Bank (which demand shall be
accompanied by a statement setting forth the basis of such
demand), the Company shall pay directly to such Bank such
additional amount or amounts as will compensate such Bank for
such increased cost or such reduction (without duplication of any
amounts which have been reimbursed pursuant to Section 6.4).
(b) If, after the date hereof, any Bank shall
determine that the adoption, effectiveness or phase-in of any
applicable law, rule, guideline or regulation regarding capital
adequacy, or any change therein, or any change in the
interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any
Bank (or any Funding Office of such Bank or any Person
controlling such Bank) with any request or directive regarding
capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on the capital of
such Bank or any Person controlling such Bank as a consequence of
its obligations hereunder to a level below that which such Bank
or such controlling Person could have achieved but for such
adoption, change or compliance (taking into consideration such
Bank's or such controlling Person's policies with respect to
capital adequacy), then, from time to time, within 10 days after
demand by such Bank (which demand shall be accompanied by a
statement setting forth the basis of such demand), the Company
shall pay directly to such Bank such additional amount or amounts
as will compensate such Bank or such controlling Person for such
reduction.
(c) Each Bank shall promptly notify the Company and
the Agent of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Bank to compensation
pursuant to this Section 7.1 and will designate a different
Funding Office if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in such
Bank's sole judgment, be otherwise disadvantageous to such Bank.
Section 7.2. Basis for Determining Interest Rate
Inadequate or Unfair. If with respect to the Loan Period for any
LIBOR Rate Loan or CD Rate Loan:
(a) the Agent is advised by two or more Reference
Banks that deposits in Dollars (in the applicable amounts)
are not being offered to such Reference Banks in the
relevant market for such Loan Period, or the Agent otherwise
determines (which determination shall be binding and
conclusive on all parties) that, by reason of circumstances
affecting the LIBOR market or the certificate of deposit
market, adequate and reasonable means do not exist for
ascertaining the applicable LIBOR Rate or CD Rate; or
(b) the Required Banks advise the Agent that the LIBOR
Rate or CD Rate, as the case may be, as determined by the
Agent will not adequately and fairly reflect the cost to
such Required Banks of maintaining or funding LIBOR Rate
Loans or CD Rate Loans for such Loan Period, or that the
making or funding of LIBOR Rate Loans or CD Rate Loans has
become impracticable as a result of an event occurring after
the date of this Agreement which in such Required Banks'
opinion materially affects LIBOR Rate Loans or CD Rate
Loans;
then (i) the Agent shall promptly notify the other parties
thereof and (ii) so long as such circumstances shall continue, no
Bank shall be under any obligation to make any LIBOR Rate Loan or
CD Rate Loan, as the case may be.
Section 7.3. Changes in Law Rendering Certain Loans
Unlawful. In the event that any change in (including the
adoption of any new) applicable laws or regulations, or in the
interpretation of applicable laws or regulations by any
Governmental Authority or other regulatory body charged with the
administration thereof, should make it (or in the good faith
judgment of such Bank raise a substantial question as to whether
it is) unlawful for a Bank to make, maintain or fund any LIBOR
Rate Loan, then (a) such Bank shall promptly notify each of the
other parties hereto, (b) upon the effectiveness of such event
and so long as such unlawfulness shall continue, the obligation
of such Bank to make LIBOR Rate Loans shall be suspended and any
request by the Company for LIBOR Rate Loans shall, as to such
Bank, be deemed to be a request for a Base Rate Loan, if said
LIBOR Rate Loan is a Committed Loan, or an Absolute Rate Loan if
said LIBOR Rate Loan is a Bid Loan and (c) on the last day of the
current Loan Period for such Bank's LIBOR Rate Loans (or, in any
event, if such Bank so requests on such earlier date as may be
required by the relevant law, regulation or interpretation) such
Bank's Loans which are LIBOR Rate Loans shall cease to be
maintained as LIBOR Rate Loans and shall thereafter bear interest
at a floating rate per annum equal to the Base Rate, if said
LIBOR Rate Loan is a Committed Loan, or at an Absolute Rate,
which Absolute Rate shall be the LIBOR Rate in effect during such
Loan Period, if said LIBOR Rate Loan is a Bid Loan. If at any
time the event giving rise to such unlawfulness shall no longer
exist, then such Bank shall promptly notify the Company and the
Agent.
Section 7.4. Funding Losses. The Company hereby
agrees that upon demand by any Bank (which demand shall be
accompanied by a statement setting forth the basis for the
calculations of the amount being claimed) the Company will
indemnify such Bank against any net loss or expense which such
Bank may sustain or incur (including, without limitation, any net
loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Bank to
fund or maintain any LIBOR Rate Loan, CD Rate Loan or Absolute
Rate Loan), as reasonably determined by such Bank, as a result of
(a) any payment or mandatory or voluntary prepayment (including,
without limitation, any payment pursuant to Section 7.3 or any
payment resulting from acceleration) of any LIBOR Rate Loan, CD
Rate Loan or Absolute Rate Loan of such Bank on a date other than
the last day of the Loan Period for such Loan or (b) any failure
of the Company to borrow any Loans on the originally scheduled
Funding Date specified therefor pursuant to this Agreement
(including, without limitation, any failure to borrow resulting
from any failure to satisfy the conditions precedent to such
borrowing). For this purpose, all notices to the Agent pursuant
to this Agreement (including, without limitation, all acceptances
of Bids) shall be deemed to be irrevocable.
Section 7.5. Discretion of Banks as to Manner of
Funding. Notwithstanding any provision of this Agreement to the
contrary (but subject to Section 7.1(c)), each Bank shall be
entitled to fund and maintain its funding of all or any part of
its Loans in any manner it sees fit, it being understood,
however, that for the purposes of this Agreement all
determinations hereunder shall be made as if such Bank had
actually funded and maintained each LIBOR Rate Loan, CD Rate Loan
or Absolute Rate Loan during the Loan Period for such Loan
through the purchase of deposits having a maturity corresponding
to such Loan Period and bearing an interest rate equal to the
rate borne by such Loan for such Loan Period.
Section 7.6. Conclusiveness of Statements; Survival of
Provisions. Determinations and statements of any Bank pursuant
to this Section 7 shall be conclusive absent demonstrable error,
and each Bank may use reasonable averaging and attribution
methods in determining compensation pursuant to Section 7.1 or
7.4. The provisions of this Section 7 shall survive termination
of this Agreement and payment of the Notes.
SECTION 8. REPRESENTATIONS AND WARRANTIES.
To induce the Banks to enter into this Agreement and to
make Loans hereunder, the Company hereby makes the following
representations and warranties to the Agent and the Banks, which
representations and warranties shall survive the execution and
delivery of this Agreement and the Notes and the disbursement of
the initial Loans hereunder:
Section 8.1. Organization, etc. The Company is a
corporation duly organized, validly existing and in good standing
under the laws of the State of California; each corporate
Subsidiary is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation; each other Subsidiary (if any) is an entity duly
organized and validly existing under the laws of the jurisdiction
of its organization; and each of the Company and each Subsidiary
has the power to own its property and to carry on its business as
now being conducted and is duly qualified and in good standing as
a foreign corporation or other entity authorized to do business
in each jurisdiction where, because of the nature of its
activities or properties, such qualification is required, except
where the failure to be so qualified or in good standing could
not reasonably be expected to have a Material Adverse Effect.
Section 8.2. Authorization; Consents; No Conflict.
The execution and delivery by the Company of this Agreement and
the Notes, the borrowings hereunder and the performance by the
Company of its obligations under this Agreement and the Notes
(a) are within the corporate powers of the Company, (b) have been
duly authorized by all necessary corporate action on the part of
the Company, (c) have received all necessary approvals,
authorizations, consents, registrations, notices, exemptions and
licenses (if any shall be required) from Governmental Authorities
and other Persons, except for any such approvals, authorizations,
consents, registrations, notices, exemptions or licenses non-
receipt of which could not reasonably be expected to have a
Material Adverse Effect, (d) do not and will not contravene or
conflict with any provision of (i) law, (ii) any judgment, decree
or order to which the Company or any Subsidiary is a party or by
which the Company or any Subsidiary is bound, (iii) the charter,
by-laws or other organizational documents of the Company or any
Subsidiary or (iv) any provision of any agreement or instrument
binding on the Company or any Subsidiary, or any agreement or
instrument of which the Company is aware affecting the properties
of the Company or any Subsidiary, except with respect to (i),
(ii) and (iv) above, for any such contravention or conflict which
could not reasonably be expected to have a Material Adverse
Effect and (e) do not and will not result in or require the
creation or imposition of any Lien on any of the Company's or its
Subsidiaries' properties.
Section 8.3. Validity and Binding Nature. This
Agreement is, and the Notes when duly executed and delivered will
be, legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
Section 8.4. Financial Statements. The Company's
audited consolidated financial statements as at December 31,
1993, and unaudited consolidated financial statements as at
September 30, 1994, a copy of each of which has been furnished to
each Bank, have been prepared in conformity with generally
accepted accounting principles in the United States applied on a
basis consistent with that of the preceding fiscal year and
fairly present the financial condition of the Company and its
Subsidiaries as at such dates and the results of their operations
for the periods then ended, and since the date of such audited
consolidated financial statements there has been no material
adverse change in the business, credit, operations, financial
condition or prospects of the Company and its Subsidiaries taken
as a whole.
Section 8.5. Litigation and Contingent Liabilities.
All Litigation Actions, taken as a whole, could not reasonably be
expected to have a Material Adverse Effect. Other than any
liability incident to such Litigation Actions or provided for or
disclosed in the financial statements referred to in Section 8.4,
neither the Company nor any Subsidiary has any contingent
liabilities which are material to the business, credit,
operations, financial condition or prospects of the Company and
its Subsidiaries taken as a whole.
Section 8.6. Employee Benefit Plans. Each employee
benefit plan (as defined in Section 3(3) of ERISA) as to which
the Company, or any Subsidiary or any ERISA Affiliate may have
any liability complies in all material respects with all
applicable requirements of law and regulations. During the
twelve-consecutive-month period prior to the execution and
delivery of this Agreement, (i) no steps have been taken to
terminate any Plan and no contribution failure has occurred with
respect to any Plan sufficient to give rise to a lien under
section 302(f) of ERISA, (ii) no Reportable Event has occurred
with respect to any Plan and (iii) neither the Company nor any
ERISA Affiliate has either withdrawn or instituted steps to
withdraw from any Multiemployer Plan, except in any such case for
actions which individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect. No
condition exists or event or transaction has occurred in
connection with any Plan which could reasonably be expected to
result in the incurrence by the Company, any Subsidiary or any
ERISA Affiliate of any material liability, fine or penalty
(imposed by Section 4975 of the Code or Section 502(i) of ERISA
or otherwise). Neither the Company nor any ERISA Affiliate is a
member of, or contributes to, any Multiemployer Plan. Neither
the Company nor any ERISA Affiliate has any contingent liability
with respect to any post retirement benefit under an employee
welfare benefit plan (as defined in section 3(i) of ERISA), other
than liability for continuation coverage described in Part 6 of
Title I of ERISA.
Section 8.7. Investment Company Act. The Company is
not an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment
Company Act of 1940, as amended.
Section 8.8. Public Utility Holding Company Act.
Neither the Company nor any Subsidiary is a "holding company", or
a "subsidiary company" of a "holding company", or an "affiliate"
of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
Section 8.9. Regulation U. Neither the Company nor
any Subsidiary is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose
of purchasing or carrying margin stock (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve
System).
Section 8.10. Information.
(a) All information with respect to the Company
contained in the December 20, 1994 memorandum furnished by
the Agent to the Banks and all information heretofore
furnished by the Company to the Agent or any Bank is, to the
best of the Company's knowledge after due inquiry, true and
accurate in every material respect as of the date thereof,
and none of such information contains any material
misstatement of fact or omits to state any material fact
necessary to make such information not misleading.
(b) All information furnished by the Company to the
Agent or any Bank on and after the date hereof shall be, to
the best of the Company's knowledge after due inquiry, true
and accurate in every material respect as of the date of
such information, and none of such information shall contain
any material misstatement of fact or shall omit to state any
material fact necessary to make such information not
misleading.
Section 8.11. Compliance with Applicable Laws, etc.
The Company and its Subsidiaries are in material compliance with
the requirements of all applicable laws, rules, regulations, and
orders of all Governmental Authorities (including, without
limitation, all applicable environmental laws). Neither the
Company nor any Subsidiary is in default under any agreement or
instrument to which the Company or such Subsidiary is a party or
by which it or any of its properties or assets is bound, which
default could reasonably be expected to have a Material Adverse
Effect on the business, credit, operations, financial condition
or prospects of the Company and its Subsidiaries taken as a
whole. No Event of Default or Unmatured Event of Default has
occurred and is continuing.
Section 8.12. Insurance. Each of the Company and each
Subsidiary maintains, or, in the case of any property owned by
the Company or any Subsidiary and leased to lessees, has caused
such lessees to maintain, insurance with financially sound and
reputable insurers to such extent and against such hazards and
liabilities as is commonly maintained, or caused to be
maintained, as the case may be, by companies similarly situated.
Section 8.13. Taxes. Each of the Company and each
Subsidiary has filed all tax returns which are required to have
been filed and has paid, or made adequate provisions for the
payment of, all of its Taxes which are due and payable, except
such Taxes, if any, as are being contested in good faith and by
appropriate proceedings and as to which such reserves or other
appropriate provisions as may be required by generally accepted
accounting principles have been established and except where
failure to pay such Taxes, individually or in the aggregate,
cannot reasonably be expected to have a Material Adverse Effect.
Section 8.14. Use of Proceeds. The proceeds of the
Loans will be used by the Company to support the Company's
commercial paper program and for other general corporate
purposes.
Section 8.15. Pari Passu. All obligations and
liabilities of the Company hereunder shall rank at least equally
and ratably (pari passu) in priority with all other
unsubordinated, unsecured obligations of the Company to any other
creditor.
Section 8.16. Ownership and Liens. Each of the
Company and each Subsidiary has title to, or valid leasehold
interests in, all of its properties and assets, real and
personal, including the properties and assets, and leasehold
interests reflected in the financial statements referred to in
Section 8.4 (other than any properties or assets disposed of in
the ordinary course of business) other than such imperfections in
title or leasehold interests which could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect, and
none of the properties and assets owned by the Company or any of
its Subsidiaries and none of its leasehold interests is subject
to any Lien, except as disclosed in such financial statements or
as may be permitted under this Agreement.
SECTION 9. COVENANTS.
Until the expiration or termination of the Commitments,
and thereafter until all obligations of the Company hereunder and
under the Notes are paid in full, the Company agrees that, unless
at any time the Required Banks shall otherwise expressly consent
in writing, it will:
Section 9.1. Reports, Certificates and Other
Information. Furnish to the Agent with sufficient copies for
each Bank which the Agent shall promptly furnish to each Bank:
9.1.1. Audited Financial Statements. As soon as
available, and in any event within 95 days after each fiscal
year of the Company, a copy of the audited financial
statements and annual audit report of the Company and its
Subsidiaries for such fiscal year prepared on a consolidated
basis and in conformity with generally accepted accounting
principles in the United States and certified by Ernst &
Young or by another independent certified public accountant
of recognized national standing selected by the Company and
satisfactory to the Required Banks.
9.1.2. Interim Reports. As soon as available, and in
any event within 50 days after each quarter (except the last
quarter) of each fiscal year of the Company, a copy of the
unaudited financial statements of the Company and its
Subsidiaries for such quarter prepared in a manner
consistent with the audited financial statements referred to
in Section 9.1.1, signed by the Company's chief financial
officer and consisting of at least a balance sheet as at the
close of such quarter and statements of earnings and cash
flows for such quarter and for the period from the beginning
of such fiscal year to the close of such quarter.
9.1.3. Certificates. Contemporaneously with the
furnishing of a copy of each annual audit report and of each
set of quarterly statements provided for in this
Section 9.1, a certificate of the Company dated the date of
delivery of such annual report or such quarterly statements
and signed by the Company's chief financial officer, to the
effect that no Event of Default or Unmatured Event of
Default has occurred and is continuing, or, if there is any
such event, describing it and the steps, if any, being taken
to cure it and containing a computation of, and showing
compliance with, each of the financial ratios and
restrictions contained in this Section 9.
9.1.4. Certain Notices. Forthwith upon learning of
the occurrence of any of the following, written notice
thereof, describing the same and the steps being taken by
the Company or the Subsidiary affected with respect thereto:
(i) the occurrence of an Event of Default or an
Unmatured Event of Default;
(ii) the institution of any Litigation Action,
provided that the Company need not give notice of any
new Litigation Action unless such Litigation Action,
together with all other pending Litigation Actions,
could, if adversely determined, reasonably be expected
to have a Material Adverse Effect;
(iii) the entry of any judgment or decree against
the Company or any Subsidiary if the aggregate amount
of all judgments and decrees then outstanding against
the Company and all Subsidiaries exceeds $10,000,000
after deducting (i) the amount with respect to which
the Company or any Subsidiary is insured and with
respect to which the insurer has not denied coverage in
writing and (ii) the amount for which the Company or
any Subsidiary is otherwise indemnified if the terms of
such indemnification are satisfactory to the Agent and
the Required Banks;
(iv) the occurrence of a Reportable Event with
respect to any Plan; the institution of any steps by
the Company, any ERISA Affiliate, the PBGC or any other
Person to terminate any Plan; the institution of any
steps by the Company or any ERISA Affiliate to withdraw
from any Plan; the incurrence of any material increase
in the contingent liability of the Company or any
Subsidiary with respect to any post-retirement welfare
benefits; or the failure of the Company or any other
Person to make a required contribution to a Plan if
such failure is sufficient to give rise to a lien under
Section 302(f) of ERISA; provided, however, that no
notice shall be required of any of the foregoing unless
the circumstance could reasonably be expected to have a
Material Adverse Effect; or
(v) the occurrence of a material adverse change
in the business, credit, operations, financial
condition or prospects of the Company and its
Subsidiaries taken as a whole.
9.1.5. SEC Filings. Promptly after the filing or
making thereof, copies of all 8-K's (other than 8-K's
relating solely to the issuance by the Company of securities
pursuant to an effective registration statement), 10-Q's,
10-K's, and other material reports or registration
statements filed by the Company or any Subsidiary with or to
any securities exchange or the Securities and Exchange
Commission.
9.1.6. Other Information. From time to time such
other information concerning the Company and its
Subsidiaries as any Bank or the Agent may reasonably
request.
Section 9.2. Existence. Maintain and preserve, and,
subject to the provisions of clauses (w), (x), (y) and (z) of
Section 9.9, cause each Subsidiary to maintain and preserve, its
respective existence as a corporation or other form of business
organization, as the case may be, and all rights, privileges,
licenses, patents, patent rights, copyrights, trademarks, trade
names, franchises and other authority to the extent material and
necessary for the conduct of its respective business in the
ordinary course as conducted from time to time, except as may be
determined by the Board of Directors of the Company in good faith
to wind up and dissolve a Subsidiary that is not necessary or
material to the business of the Company in its ordinary course as
conducted from time to time.
Section 9.3. Nature of Business. Engage, and cause
each Subsidiary to engage, in substantially the same fields of
business as it is engaged in on the date hereof.
Section 9.4. Books, Records and Access. Maintain, and
cause each Subsidiary to maintain, complete and accurate books
and records in which full and correct entries in conformity with
generally accepted accounting principles in the United States
shall be made of all dealings and transactions in relation to its
respective business and activities. Permit, and cause each
Subsidiary to permit, access by the Agent and each Bank to the
books and records of the Company and such Subsidiary during
normal business hours, and permit, and cause each Subsidiary to
permit, the Agent and each Bank to make copies of such books and
records.
Section 9.5. Insurance. Maintain, and cause each
Subsidiary to maintain, such insurance as is described in
Section 8.12.
Section 9.6. Repair. Maintain, preserve and keep, and
cause each Subsidiary to maintain, preserve and keep, its
material properties in good repair, working order and condition,
and from time to time make, and cause each Subsidiary to make,
all necessary and proper repairs, renewals, replacements,
additions, betterments and improvements thereto so that at all
times the efficiency thereof shall be fully preserved and
maintained. In the case of properties leased by the Company or
any Subsidiary to lessees, the Company may satisfy its
obligations related to such properties under the previous
sentence by causing, or by causing each Subsidiary to cause, such
lessees to perform such obligations.
Section 9.7. Taxes. Pay, and cause each Subsidiary to
pay, when due, all of its Taxes, unless and only to the extent
that the Company or such Subsidiary, as the case may be, is
contesting any such Taxes in good faith and by appropriate
proceedings and the Company or such Subsidiary has set aside on
its books such reserves or other appropriate provisions therefor
as may be required by generally accepted accounting principles in
the United States, except where failure to pay such Taxes,
individually or in the aggregate, cannot reasonably be expected
to have a Material Adverse Effect.
Section 9.8. Compliance. Comply, and cause each
Subsidiary to comply, in all material respects with all statutes
and governmental rules and regulations applicable to it; and use
reasonable efforts to cause, and cause each Subsidiary to use
reasonable efforts to cause, each lessee of property owned by the
Company or any Subsidiary to comply in all material respects with
all statutes, governmental rules and regulations applicable to
such property or applicable to such lessee in connection with its
leasing.
Section 9.9. Merger, Purchase and Sale. Except with
respect to any Permitted Acquisition, not, and not permit any
Subsidiary to:
(a) be a party to any merger or consolidation;
(b) transfer, convey, lease or otherwise dispose of
all or substantially all of the assets of the Company and
its Subsidiaries taken as a whole; or
(c) purchase or otherwise acquire all or substantially
all the assets of any Person unless such purchase or
acquisition is a Permitted Acquisition by the Company.
Notwithstanding the foregoing:
(w) the Company may merge or consolidate with a person
that is a U.S. corporation;
(x) any Wholly-owned Subsidiary may merge into the
Company or into or with any other Wholly-owned Subsidiary;
(y) any Wholly-owned Subsidiary may consolidate with
any other Wholly-owned Subsidiary so long as immediately
thereafter 100% of the voting stock or other ownership
interest of the resulting Person is owned by the Company or
another Wholly-owned Subsidiary; and
(z) any Wholly-owned Subsidiary may sell, transfer,
convey, lease or assign all or a substantial part of its
assets to the Company or another Wholly-owned Subsidiary;
provided, in each of the cases described in preceding
clauses (w), (x), (y) and (z), that immediately thereafter and
after giving effect thereto no Event of Default or Unmatured
Event of Default shall have occurred and be continuing and in the
case of any (i) merger in which the Company is not the surviving
entity or (ii) consolidation to which the Company is a party, the
surviving entity or the Person formed by such consolidation, as
the case may be, shall assume the Company's obligations and
performance of the Company's covenants under this Agreement in a
writing satisfactory in form and substance to the Agent.
Section 9.10. Consolidated Indebtedness to
Consolidated Tangible Net Worth Ratio. Not permit the ratio of
Consolidated Indebtedness to Consolidated Tangible Net Worth to
exceed 600% on and as of the last day of any fiscal year or 650%
at any other time.
Section 9.11. Fixed Charge Coverage Ratio. Not permit
the Fixed Charge Coverage Ratio on the last day of any quarter of
any fiscal year of the Company to be less than 125%.
Section 9.12. Consolidated Tangible Net Worth. Not
permit the Company's Consolidated Tangible Net Worth to be less
than $1,500,000,000 plus 50% of (a) the cumulative net income
(but without deduction for cumulative net losses) of the Company
and its Subsidiaries determined on a consolidated basis in
accordance with United States generally accepted accounting
principles, (b) the cumulative equity capital contributions from
AIG and (c) the net proceeds from the sale of preferred stock, in
each case for the period from September 30, 1994 to and including
the date of any determination hereunder.
Section 9.13. Restricted Payments. Not declare or pay
any dividends whatsoever or make any distribution on any capital
stock of the Company (except in shares of, or warrants or rights
to subscribe for or purchase shares of, capital stock of the
Company), and not, and not permit any Subsidiary to, make any
payment to acquire or retire shares of capital stock of the
Company, at any time when (i) an Event of Default as described in
Section 11.1 has occurred and is continuing and there are Loans
outstanding hereunder or (ii) an Event of Default as described in
Section 11.1.1 has occurred and is continuing and there are no
Loans outstanding hereunder; provided, however, that
notwithstanding the foregoing, this Section 9.13 shall not
prohibit (x) the payment of dividends on any of the Company's
market auction preferred stock that was sold to the public
pursuant to an effective registration statement under the
Securities Act of 1933 or (y) the payment of dividends within
30 days of the declaration thereof if such declaration was not
prohibited by this Section 9.13.
Section 9.14. Liens. Not, and not permit any
Subsidiary to, create or permit to exist any Lien upon or with
respect to any of its properties or assets of any kind, now owned
or hereafter acquired, or on any income or profits therefrom,
except for
(a) Liens existing on date hereof that are reflected
in the financial statements of the Company dated prior to
the date hereof;
(b) Liens upon or in any property (other than property
acquired for lease to a Person other than the Company or a
Subsidiary) acquired or held by the Company or a Subsidiary
in the ordinary course of business to secure the purchase
price of such property or to secure Indebtedness permitted
under Section 9.15 incurred or guaranteed by the Company or
any Subsidiary prior to, at the time of, or within 60 days
after the later of the acquisition, completion of
construction or commencement of full operation of such
property, which Indebtedness was incurred or guaranteed
solely for the purpose of financing the acquisition of such
property or construction or improvements thereon; provided,
however, that in the case of any such acquisition,
construction or improvement, the Lien shall not apply to any
property theretofore owned by the Company or a Subsidiary,
other than, in the case of any such construction or
improvement, any theretofore unimproved real property on
which the property so constructed, or the improvement, is
located;
(c) Liens securing the Indebtedness of a Subsidiary
owing to the Company or to a Wholly-owned Subsidiary;
(d) Liens on property of a corporation existing at the
time such corporation is merged into or consolidated with
the Company or a Subsidiary or at the time of a purchase,
lease or other acquisition of the properties of a
corporation or firm as an entirety or substantially as an
entirety by the Company or a Subsidiary, provided that any
such Lien shall not extend to or cover any assets or
properties of the Company or such Subsidiary owned by the
Company or such Subsidiary prior to such merger,
consolidation, purchase, lease or acquisition, unless
otherwise permitted under this Section 9.14;
(e) leases or subleases granted to others in the
ordinary and usual course of the Company's business;
(f) easements, rights of way, restrictions and other
similar charges or encumbrances not interfering with the
ordinary conduct of the business of the Company or any
Subsidiary;
(g) banker's Liens arising, other than by contract, in
the ordinary and usual course of the Company's business;
(h) Liens incurred or deposits made in the ordinary
course of business in connection with surety and appeal
bonds, leases, government contracts, performance and
return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed
money), provided, however, that the obligation so secured is
not overdue or is being contested in good faith and by
appropriate proceedings diligently pursued;
(i) any replacement or successive replacement in
whole or in part of any Lien referred to in the foregoing
clauses (a) to (h), inclusive, provided, however, that the
principal amount of any Indebtedness secured by the Lien
shall not be increased and the principal repayment schedule
and maturity of such Indebtedness shall not be extended and
(i) such replacement shall be limited to all or a part of
the property which secured the Lien so replaced (plus
improvements and construction on such property) or (ii) if
the property which secured the Lien so replaced has been
destroyed, condemned or damaged and pursuant to the terms of
the Lien other property has been substituted therefor, then
such replacement shall be limited to all or part of such
substituted property;
(j) Liens created by or resulting from any litigation
or other proceeding which is being contested in good faith
by appropriate proceedings, including Liens arising out of
judgments or awards against the Company or any Subsidiary
with respect to which the Company or such Subsidiary is in
good faith prosecuting an appeal or proceedings for review;
or Liens incurred by the Company or any Subsidiary for the
purpose of obtaining a stay or discharge in the course of
any litigation or other proceeding to which the Company or
such Subsidiary is a party;
(k) carrier's, warehouseman's, mechanic's, landlord's
and materialmen's Liens, Liens for Taxes, assessments and
other governmental charges and other similar Liens, in each
case arising in the ordinary course of business, securing
obligations that are not incurred in connection with the
obtaining of any advance or credit and which are either not
overdue or are being contested in good faith and by
appropriate proceedings diligently pursued;
(l) Liens securing Indebtedness of each of the
Company's Wholly-owned Subsidiaries to be incorporated
outside the United States for the purpose of providing
subsidized financing of the acquisition of Airbus Industrie
aircraft, the repayment obligations of which will be
supported by guaranties issued by certain European
government export credit agencies (the European Credit
Agency Export Finance Program or "ECA Program") and a
Company Guaranty and a pledge of the assets of (including
any rights to or interests in any reserve or security
deposit held by) each such Wholly-owned Subsidiary, provided
that such Liens shall encumber only the assets of (including
any rights to or interests in any reserve or security
deposit held by) each such Wholly-owned Subsidiary, and
provided further, that the aggregate amount of Indebtedness
of all such Wholly-owned Subsidiaries secured by Liens does
not at the time exceed $2 billion during the 1995 fiscal
year of the Company and $3 billion thereafter, minus in
either case the amount of outstanding Liens permitted under
Section 9.14(m); and
(m) other Liens securing Indebtedness of the Company
or any Subsidiary in an aggregate amount which, together
with all other outstanding Indebtedness of the Company and
the Subsidiaries secured by Liens not listed in clauses (a)
through (l) of this Section 9.14, does not at the time
exceed 12.5% of the Consolidated Tangible Net Worth of the
Company as shown on its audited consolidated financial
statements as of the end of the fiscal year preceding the
date of determination minus the amount of outstanding Liens
permitted under Section 9.14(l).
Section 9.15. Leases. Not, and not permit any
Subsidiary to, become obligated, as lessee, under any lease of
real or personal property if at the time of entering into such
lease and after giving effect thereto the aggregate Operating
Lease Rentals would exceed 20% of Consolidated Indebtedness.
Section 9.16. Use of Proceeds. Not permit any
proceeds of the Loans to be used, either directly or indirectly,
(a) for the payment of any dividend or for the
repurchase of any of the Company's equity securities;
(b) for the purpose, whether immediate, incidental or
ultimate, of "purchasing or carrying any margin stock"
within the meaning of Regulation U of the Board of Governors
of the Federal Reserve System, as amended from time to time;
(c) for the purpose, whether immediate, incidental or
ultimate, of acquiring directly or indirectly any of the
outstanding shares of voting stock of any corporation which
(i) has announced that it will oppose such acquisition or
(ii) has commenced any litigation which alleges that any
such acquisition violates, or will violate, applicable law;
or
(d) for any other purpose except (i) to support the
Company's commercial paper program or (ii) for general
corporate purposes in the ordinary course of business.
Section 9.17. Transactions with Related Parties. Not,
and not permit any Subsidiary to, enter into or be a party to any
transaction or arrangement, including, without limitation, the
purchase, sale, lease or exchange of property or the rendering of
any service, with any Related Party, except in the ordinary
course of and pursuant to the reasonable requirements of the
Company's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the Company or such
Subsidiary than would be obtained in a comparable arm's-length
transaction with a Person not a Related Party.
Section 9.18. Securitization. Promptly after the
receipt thereof, apply the proceeds from the securitization of
assets (aircraft lease portfolio securitizations), net of
expenses related to any such securitization, to the repayment of
Indebtedness.
SECTION 10. CONDITIONS TO LENDING.
Section 10.1. Conditions Precedent to All Loans. Each
Bank's obligation to make each Loan is subject to the following
conditions precedent:
10.1.1. No Default. (a) No Event of Default or
Unmatured Event of Default has occurred and is continuing or
will result from the making of such Loan, (b) the
representations and warranties contained in Section 8 are
true and correct in all material respects as of the date of
such requested Loan, with the same effect as though made on
the date of such Loan (it being understood that each request
for a Loan shall automatically constitute a representation
and warranty by the Company that, as at the requested date
of such Loan, (x) all conditions under this Section 10.1.1
shall be satisfied and (y) after the making of such Loan the
aggregate principal amount of all outstanding Loans will not
exceed the Aggregate Commitment).
10.1.2. Documents. The Agent shall have received
(a) a certificate signed by an Authorized Officer of the
Company as to compliance with Section 10.1.1, which
requirement shall be deemed satisfied by the submission of a
properly completed Notice of Competitive Bid Borrowing or
Committed Loan Request and (b) such other documents as the
Agent may reasonably request in support of such Loan.
10.1.3. Litigation. No Litigation Action not
disclosed in writing by the Company to the Agent and the
Banks prior to the date of the last previous Loan hereunder
(or, in the case of the initial Loan, prior to the date of
execution and delivery of this Agreement) ("New Litigation")
has been instituted and no development not so disclosed has
occurred in any other Litigation Action ("Existing
Litigation"), unless the resolution of all New Litigation
and Existing Litigation against the Company and its
Subsidiaries could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
Section 10.2. Conditions to the Availability of the
Commitments. The obligations of each Bank hereunder are subject
to, and the Banks' Commitments shall not become available until
the date on which each of the following conditions precedent
shall have been satisfied or waived in writing by the Required
Banks:
10.2.1. Revolving Credit Agreement. The Agent shall
have received this Agreement duly executed and delivered by
each of the Banks and the Company and each of the Banks
shall have received a fully executed Committed Note and a
fully executed Bid Note.
10.2.2. Evidence of Corporate Action. The Agent shall
have received certified copies of all corporate actions
taken by the Company to authorize this Agreement and the
Notes.
10.2.3. Incumbency and Signatures. The Agent shall
have received a certificate of the Secretary or an Assistant
Secretary of the Company certifying the names of the officer
or officers of the Company authorized to sign this
Agreement, the Notes and the other documents provided for in
this Agreement to be executed by the Company, together with
a sample of the true signature of each such officer (it
being understood that the Agent and each Bank may
conclusively rely on such certificate until formally advised
by a like certificate of any changes therein).
10.2.4. Good Standing Certificates. The Agent shall
have received such good standing certificates of state
officials with respect to the incorporation of the Company,
or other matters, as the Agent or the Banks may reasonably
request.
10.2.5. Opinions of Company Counsel. The Agent shall
have received favorable written opinions of O'Melveny &
Myers, counsel for the Company, in substantially the form of
Exhibit G, and the Corporate Counsel of the Company, in
substantially the form of Exhibit H.
10.2.6. Opinion of Agent's Counsel. The Agent shall
have received a favorable written opinion of Sullivan &
Cromwell, counsel to the Agent, with respect to documents
received by the Agent and the Banks and such legal matters
as the Agent reasonably may require.
10.2.7. Other Documents. The Agent shall have
received such other certificates and documents as the Agent
or the Banks reasonably may require.
10.2.8. Fees. The Agent shall have received for the
account of the Agent, the arrangement fee, as previously
agreed to between the Company and the Agent and the Agent's
fees payable to the Funding Date pursuant to Section 4.5
hereof.
10.2.9. Material Adverse Change. Since the date of
the audited financial statements identified in Section 8.4
hereof, there shall not have occurred any material adverse
change in the business, credit, operations, financial
condition or prospects of the Company and its Subsidiaries
taken as a whole.
10.2.10. Termination of Revolving Credit Facilities.
The Company shall have paid all amounts owing and otherwise
satisfied and discharged all of its obligations arising
under each of the Revolving Credit Agreements, dated as of
June 1, 1993, as amended, among the Company, the Agent and
the banks named therein, and such agreements shall have been
terminated and of no further force and effect, evidence of
which shall have been made available to the Agent.
SECTION 11. EVENTS OF DEFAULT AND THEIR EFFECT.
Section 11.1. Events of Default. Each of the
following shall constitute an Event of Default under this
Agreement:
11.1.1. Non-Payment of Notes, etc. Default in the
payment when due of any principal of any Loan; or default,
and continuance thereof for five days, in the payment when
due of any interest on any Loan or any fees payable by the
Company hereunder.
11.1.2. Non-Payment of Other Indebtedness for Borrowed
Money. Default in the payment when due (subject to any
applicable grace period), whether by acceleration or
otherwise, of any principal of, interest on or fees incurred
in connection with any other Indebtedness of, or guaranteed
by, the Company or any Significant Subsidiary (except
(i) any such Indebtedness of any Subsidiary to the Company
or to any other Subsidiary and (ii) any Indebtedness
hereunder) and, if a default in the payment of interest or
fees, continuance of such default for five days, in the case
of interest, or 30 days, in the case of fees, or default in
the performance or observance of any obligation or condition
with respect to any such other Indebtedness if the effect of
such default (subject to any applicable grace period) is to
accelerate the maturity of any such Indebtedness or to
permit the holder or holders thereof, or any trustee or
agent for such holders, to cause such Indebtedness to become
due and payable prior to its expressed maturity; provided,
however, that the aggregate principal amount of all
Indebtedness as to which there has occurred any default as
described above shall equal or exceed $50,000,000.
11.1.3. Bankruptcy, Insolvency, etc. The Company or
any Significant Subsidiary becomes insolvent or generally
fails to pay, or admits in writing its inability or refusal
to pay, debts as they become due; or the Company or any
Significant Subsidiary applies for, consents to, or
acquiesces in the appointment of a trustee, receiver or
other custodian for the Company or such Significant
Subsidiary or any property thereof, or makes a general
assignment for the benefit of creditors; or, in the absence
of such application, consent or acquiescence, a trustee,
receiver or other custodian is appointed for the Company or
any Significant Subsidiary or for a substantial part of the
property of any thereof and is not discharged within
60 days; or any warrant of attachment or similar legal
process is issued against any substantial part of the
property of the Company or any of its Significant
Subsidiaries which is not released within 60 days of
service; or any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution or
liquidation proceeding (except the voluntary dissolution,
not under any bankruptcy or insolvency law, of a Significant
Subsidiary), is commenced in respect of the Company or any
Significant Subsidiary, and, if such case or proceeding is
not commenced by the Company or such Significant Subsidiary
it is consented to or acquiesced in by the Company or such
Significant Subsidiary or remains for 60 days undismissed;
or the Company or any Significant Subsidiary takes any
corporate action to authorize, or in furtherance of, any of
the foregoing.
11.1.4. Non-Compliance with this Agreement. Failure by
the Company to comply with or to perform any of the
Company's covenants herein or any other provision of this
Agreement (and not constituting an Event of Default under
any of the other provisions of this Section 11.1) and
continuance of such failure for 30 days (or, if the Company
failed to give notice of such non-compliance or
nonperformance pursuant to Section 9.1.4 within one Business
Day after obtaining actual knowledge thereof, 30 days less
the number of days elapsed between the date the Company
obtained such actual knowledge and the date the Company
gives the notice pursuant to Section 9.1.4, but in no event
less than one Business Day) after notice thereof to the
Company from the Agent, any Bank, or the holder of any Note.
11.1.5. Representations and Warranties. Any
representation or warranty made by the Company herein is
untrue or misleading in any material respect when made or
deemed made; or any schedule, statement, report, notice, or
other writing furnished by the Company to the Agent or any
Bank is false or misleading in any material respect on the
date as of which the facts therein set forth are stated or
certified; or any certification made or deemed made by the
Company to the Agent or any Bank is untrue or misleading in
any material respect on or as of the date made or deemed
made.
11.1.6. Employee Benefit Plans. The institution by
the Company or any ERISA Affiliate of steps to terminate any
Plan if, in order to effectuate such termination, (i) the
Company or any ERISA Affiliate would be required to make a
contribution to such Plan or would incur a liability or
obligation to such Plan in an amount in excess of
$10,000,000 and (ii) immediately after giving effect to the
payment or satisfaction of such contribution, liability or
obligation (if made or undertaken by the Company or any
Subsidiary) an Event of Default or Unmatured Event of
Default would exist and be continuing; or the institution by
the PBGC of steps to terminate any Plan; or a contribution
failure occurs with respect to a Plan sufficient to give
rise to a lien under Section 302(f) of ERISA securing an
amount in excess of $10,000,000.
11.1.7. Litigation. There shall be entered against
the Company or any Subsidiary one or more judgments or
decrees in excess of $10,000,000 in the aggregate at any one
time outstanding for the Company and all Subsidiaries and
all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days
from the entry thereof, excluding those judgments or decrees
for and to the extent to which the Company or any Subsidiary
is insured and with respect to which the insurer has not
denied coverage in writing or for and to the extent to which
the Company or any Subsidiary is otherwise indemnified if
the terms of such indemnification are satisfactory to the
Required Banks; and
11.1.8. Change of Ownership. AIG shall cease to own
beneficially at least 51% of all of the outstanding shares
of the common stock of the Company.
Section 11.2. Effect of Event of Default. If any Event
of Default described in Section 11.1.3 shall occur, the
Commitments (if they have not theretofore terminated) shall
immediately terminate and all Loans and all interest and other
amounts due hereunder shall become immediately due and payable,
all without presentment, demand or notice of any kind; and, in
the case of any other Event of Default, the Agent may, and upon
written request of the Required Banks shall, declare the
Commitments (if they have not theretofore terminated) to be
terminated and all Loans and all interest and other amounts due
hereunder to be due and payable, whereupon the Commitments (if
they have not theretofore terminated) shall immediately terminate
and all Loans and all interest and other amounts due hereunder
shall become immediately due and payable, all without
presentment, demand or notice of any kind. The Agent shall
promptly advise the Company and each Bank of any such
declaration, but failure to do so shall not impair the effect of
such declaration.
SECTION 12. THE AGENT.
Section 12.1. Authorization. Each Bank and the holder
of each Note authorizes the Agent to act on behalf of such Bank
or holder to the extent provided herein and in any other document
or instrument delivered hereunder or in connection herewith, and
to take such other action as may be reasonably incidental
thereto. Subject to the provisions of Section 12.3, the Agent
will take such action permitted by any agreement delivered in
connection with this Agreement as may be requested in writing by
the Required Banks or if required under Section 13.1, all of the
Banks. The Agent shall promptly remit in immediately available
funds to each Bank or other holder its share of all payments
received by the Agent for the account of such Bank or holder, and
shall promptly transmit to each Bank (or share with each Bank the
contents of) each notice it receives from the Company pursuant to
this Agreement.
Section 12.2. Indemnification. The Banks agree to
indemnify the Agent in its capacity as such (to the extent not
reimbursed by the Company), ratably according to their respective
Percentages, from and against any and all actions, causes of
action, suits, losses, liabilities, damages and expenses which
may at any time (including, without limitation, at any time
following the payment of the Notes) be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out
of this Agreement, or any documents contemplated by or referred
to herein or the transactions contemplated hereby or any action
taken or omitted by the Agent under or in connection with any of
the foregoing; provided that no Bank shall be liable for the
payment to the Agent of any portion of such actions, causes of
action, suits, losses, liabilities, damages and expenses
resulting from the Agent's or its employees' or agents' gross
negligence or willful misconduct. Without limiting the
foregoing, subject to Section 13.5 each Bank agrees to reimburse
the Agent promptly upon demand for its ratable share of any out-
of-pocket expenses (including reasonable counsel fees) incurred
by the Agent in such capacity in connection with the preparation,
execution or enforcement of, or legal advice in respect of rights
or responsibilities under, this Agreement or any amendments or
supplements hereto or thereto to the extent that the Agent is not
reimbursed for such expenses by the Company. All obligations
provided for in this Section 12.2 shall survive repayment of the
Loans, cancellation of the Notes or any termination of this
Agreement.
Section 12.3. Action on Instructions of the Required
Banks. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or
collection of the Notes), the Agent shall not be required to
exercise any discretion or take any action, but the Agent shall
in all cases be fully protected in acting or refraining from
acting upon the written instructions from (i) the Required Banks,
except for instructions which under the express provisions hereof
must be received by the Agent from all Banks and (ii) in the case
of such instructions, from all Banks. In no event will the Agent
be required to take any action which exposes the Agent to
personal liability or which is contrary to this Agreement or
applicable law. The relationship between the Agent and the Banks
is and shall be that of agent and principal only and nothing
herein contained shall be construed to constitute the Agent a
trustee for any holder of a Note or of a participation therein
nor to impose on the Agent duties and obligations other than
those expressly provided for herein.
Section 12.4. Payments. (a) The Agent shall be
entitled to assume that each Bank has made its Loan available in
accordance with Section 2.3 or Section 3.2(c), as applicable,
unless such Bank notifies the Agent at its Notice Office prior to
11:00 a.m., New York City time, on the Funding Date for such Loan
that it does not intend to make such Loan available, it being
understood that no such notice shall relieve such Bank of any of
its obligations under this Agreement. If the Agent makes any
payment to the Company on the assumption that a Bank has made the
proceeds of such Loan available to the Agent but such Bank has
not in fact made the proceeds of such Loan available to the
Agent, such Bank shall pay to the Agent on demand an amount equal
to the amount of such Bank's Loan, together with interest thereon
for each day that elapses from and including such Funding Date to
but excluding the Business Day on which the proceeds of such
Bank's Loan become immediately available to the Agent at its
Payment Office prior to 12:00 Noon, New York City time, at the
Federal Funds Rate for each such day, based upon a year of 360
days. A certificate of the Agent submitted to any Bank with
respect to any amounts owing under this Section 12.4(a) shall be
conclusive absent demonstrable error. If the proceeds of such
Bank's Loan are not made available to the Agent at its Payment
Office by such Bank within three Business Days of such Funding
Date, the Agent shall be entitled to recover such amount on
demand from the Company, together with interest thereon for each
day that elapses from and including such Funding Date to but
excluding the Business Day on which such proceeds become
immediately available to the Agent prior to 12:00 Noon, New York
City time, (i) in the case of a Bid Loan, at the rate per annum
applicable thereto and (ii) in the case of a Committed Loan, at
the rate per annum applicable to Base Rate Loans hereunder, in
either case based upon a year of 360 days. Nothing in this
paragraph (a) shall relieve any Bank of any obligation it may
have hereunder to make any Loan or prejudice any rights which the
Company may have against any Bank as a result of any default by
such Bank hereunder.
(b) The Agent shall be entitled to assume that the
Company has made all payments due hereunder from the Company on
the due date thereof unless it receives notification prior to any
such due date from the Company that the Company does not intend
to make any such payment, it being understood that no such notice
shall relieve the Company of any of its obligations under this
Agreement. If the Agent distributes any payment to a Bank
hereunder in the belief that the Company has paid to the Agent
the amount thereof but the Company has not in fact paid to the
Agent such amount, such Bank shall pay to the Agent on demand
(which shall be made by telegram, telex, facsimile or personal
delivery) an amount equal to the amount of the payment made by
the Agent to such Bank, together with interest thereon for each
day that elapses from and including the date on which the Agent
made such payment to but excluding the Business Day on which the
amount of such payment is returned to the Agent at its Payment
Office in immediately available funds prior to 12:00 Noon,
New York City time, at the Federal Funds Rate for each such day,
based upon a year of 360 days. If the amount of such payment is
not returned to the Agent in immediately available funds within
three Business Days after demand by the Agent, such Bank shall
pay to the Agent on demand an amount calculated in the manner
specified in the preceding sentence after substituting the term
"Base Rate" for the term "Federal Funds Rate". A certificate of
the Agent submitted to any Bank with respect to amounts owing
under this Section 12.4(b) shall be conclusive absent
demonstrable error.
Section 12.5. Exculpation. The Agent shall be
entitled to rely upon advice of counsel concerning legal matters,
and upon this Agreement and any Note, security agreement,
schedule, certificate, statement, report, notice or other writing
which it believes to be genuine or to have been presented by a
proper person. Neither the Agent nor any of its directors,
officers, employees or agents shall (i) be responsible for any
recitals, representations or warranties contained in, or for the
execution, validity, genuineness, effectiveness or enforceability
of, this Agreement, any Note or any other instrument or document
delivered hereunder or in connection herewith, (ii) be deemed to
have knowledge of an Event of Default or Unmatured Event of
Default until after having received actual notice thereof from
the Company or a Bank, (iii) be under any duty to inquire into or
pass upon any of the foregoing matters, or to make any inquiry
concerning the performance by the Company or any other obligor of
its obligations or (iv) in any event, be liable as such for any
action taken or omitted by it or them, except for its or their
own gross negligence or willful misconduct. The agency hereby
created shall in no way impair or affect any of the rights and
powers of, or impose any duties or obligations upon, the Agent in
its individual capacity.
Section 12.6. Credit Investigation. Each Bank
acknowledges, and shall cause each Assignee or Participant to
acknowledge in its assignment or participation agreement with
such Bank, that it has (i) made and will continue to make such
inquiries and has taken and will take such care on its own behalf
as would have been the case had the Loans been made directly by
such Bank or other applicable Person to the Company without the
intervention of the Agent or any other Bank and
(ii) independently and without reliance upon the Agent or any
other Bank, and based on such documents and information as it has
deemed appropriate, made and will continue to make its own credit
analysis and decisions relating to this Agreement. Each Bank
agrees and acknowledges, and shall cause each Assignee or
Participant to agree and acknowledge in its assignment or
participation agreement with such Bank, that the Agent makes no
representations or warranties about the creditworthiness of the
Company or any other party to this Agreement or with respect to
the legality, validity, sufficiency or enforceability of this
Agreement or any Note.
Section 12.7. UBS and Affiliates. UBS and each of its
successors as Agent shall have the same rights and powers
hereunder as any other Bank and may exercise or refrain from
exercising the same as though it were not the Agent, and UBS and
any such successor and its Affiliates may accept deposits from,
lend money to and generally engage, and continue to engage, in
any kind of business with the Company or any Affiliate thereof as
if UBS or such successor were not the Agent hereunder.
Section 12.8. Resignation. The Agent may resign as
such at any time upon at least 30 days' prior notice to the
Company and the Banks. In the event of any such resignation,
Banks having an aggregate Percentage of more than 50% shall as
promptly as practicable appoint a successor Agent reasonably
acceptable to the Company. If no successor Agent shall have been
so appointed, and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of resignation,
then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent reasonably acceptable to the Company, which shall
be a commercial bank organized under the laws of the United
States of America or of any State thereof or under the laws of
another country which is doing business in the United States of
America and having a combined capital, surplus and undivided
profits of at least $1,000,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor agent, such
successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from all
further duties and obligations under this Agreement. After any
retiring Agent's resignation hereunder as Agent, the provisions
of this Section 12 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this
Agreement.
SECTION 13. GENERAL.
Section 13.1. Waiver; Amendments. No delay on the
part of the Agent, any Bank, or the holder of any Loan in the
exercise of any right, power or remedy shall operate as a waiver
thereof, nor shall any single or partial exercise by any of them
of any right, power or remedy preclude other or further exercise
thereof, or the exercise of any other right, power or remedy. No
amendment, modification or waiver of, or consent with respect to,
any provision of this Agreement or the Notes shall in any event
be effective unless the same shall be in writing and signed and
delivered by the Agent and by Banks having an aggregate
Percentage of not less than the aggregate Percentage expressly
designated herein with respect thereto or, in the absence of such
designation as to any provision of this Agreement or the Notes,
by the Required Banks, and then any amendment, modification,
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No
amendment, modification, waiver or consent (i) shall extend or
increase the amount of the Commitments, extend the due date for
any amount payable hereunder, reduce or waive any fee hereunder,
change the definition of "Required Banks" or Percentage in
Section 1, amend or modify Section 4.1 or change any of the
defined terms used in Section 4.1, amend or modify Section 4.4,
Section 4.6, Section 11.1.1 or Section 11.1.8, modify this
Section 13.1 or otherwise change the aggregate Percentage
required to effect an amendment, modification, waiver or consent
without the written consent of all Banks, (ii) shall waive any of
the conditions precedent specified in Section 10.1 for the making
of any Loan without the written consent of the Bank which is to
make such Loan or (iii) shall extend the scheduled maturity or
reduce the principal amount of, or rate of interest on, or extend
the due date for any amount payable under, any Loan without the
written consent of the holder of the Note evidencing such Loan.
Amendments, modifications, waivers and consents of the type
described in clause (iii) of the preceding sentence with respect
to Bid Loans or Bid Notes may be effected with the written
consent of the holder of such Bid Loans or Bid Notes and no
consent of any other Bank or other holder shall be required in
connection therewith. No provisions of Section 12 shall be
amended, modified or waived without the Agent's written consent.
Section 13.2. Notices. Except as otherwise expressly
provided in this Agreement, any notice hereunder to the Company,
the Agent, or any Bank or other holder of a Loan shall be in
writing and, if by telegram, telex, facsimile or personal
delivery, shall be deemed to have been given and received when
sent and, if mailed, shall be deemed to have been given and
received three Business Days after the date when sent by
registered or certified mail, postage prepaid, and addressed to
the Company, the Agent, or such Bank (or other holder) at its
address shown below its signature hereto or at such other address
as it may, by written notice received by the other parties to
this Agreement, have designated as its address for such purpose.
The Agent, any Bank or the holder of any Note giving any waiver,
consent or notice to, or making any request upon, the Company
hereunder shall promptly notify the Agent thereof. Corres-
pondence of the type described in Section 2.2 with respect to Bid
Loans and notices of Committed Loan Requests made by the Company
shall, except as otherwise provided herein, be directed to the
persons specified for such purpose for each party on the
signature pages hereof or in subsequent writings among the
parties. Additional copies of certain notices which any party may
have requested on the signature pages hereof need not be
delivered at the same time as the primary notices to such party,
but the party delivering such primary notices shall use
reasonable efforts to distribute such copies on the same Business
Day as that on which such primary notices were distributed.
Section 13.3. Computations. Where the character or
amount of any asset or liability or item of income or expense is
required to be determined, or any consolidation or other
accounting computation is required to be made, for the purpose of
this Agreement, such determination or calculation shall, at any
time and to the extent applicable and except as otherwise
specified in this Agreement, be made in accordance with generally
accepted accounting principles in the United States applied on a
basis consistent with those in effect as at the date of the
Company's audited financial statements referred to in
Section 8.4. If there should be any material change in generally
accepted accounting principles in the United States after the
date hereof which materially affects the financial covenants in
this Agreement, the parties hereto agree to negotiate in good
faith appropriate revisions of such covenants (it being
understood, however, that such covenants shall remain in full
force and effect in accordance with their existing terms pending
the execution by the Company and the Banks of any such
amendment).
Section 13.4. Assignments; Participations. Each Bank
may assign, or sell participations in, its Loans and its
Commitment to one or more other Persons in accordance with this
Section 13.4 (and the Company consents to the disclosure of any
information obtained by any Bank in connection herewith to any
actual or prospective Assignee or Participant).
Section 13.4.1. Assignments. Any Bank may with the
written consents of the Company and the Agent (which
consents will not be unreasonably withheld or delayed) at
any time assign and delegate to one or more commercial banks
or other financial institutions (any Person to whom an
assignment and delegation is made being herein called an
"Assignee") all or any fraction of such Bank's Loans and
Commitment (which assignment and delegation shall be of a
constant, and not a varying, percentage of such assigning
Bank's Loans and Commitment); each such assignment of a
Bank's Commitment, when considered in aggregate with any
simultaneous assignment by such Bank pursuant to the
$450,000,000 Revolving Credit Agreement executed by the
parties hereto on the date hereof, shall be in the minimum
aggregate amount of $10,000,000 or in integral multiples of
$1,000,000 in excess thereof; provided that any such
Assignee will comply, if applicable, with the provisions
contained in the first sentence of Section 6.4(b) and shall
be deemed to have made, on the date of the effectiveness of
such assignment and delegation, the representation and
warranty set forth in the second sentence of Section 6.4(b);
and provided further, that the Company and the Agent shall
be entitled to continue to deal solely and directly with
such assigning Bank in connection with the interests so
assigned and delegated to an Assignee until such assigning
Bank and/or such Assignee shall have:
(i) given written notice of such assignment and
delegation, together with payment instructions,
addresses and related information with respect to such
Assignee, substantially in the form of Exhibit I, to
the Company and the Agent;
(ii) provided evidence satisfactory to the Company
and the Agent that, as of the date of such assignment
and delegation, the Company will not be required to pay
any costs, fees, taxes or other amounts of any kind or
nature with respect to the interest assigned in excess
of those payable by the Company with respect to such
interest prior to such assignment;
(iii) paid to the Agent for the account of the
Agent a processing fee of $2,500; and
(iv) provided to the Agent evidence reasonably
satisfactory to the Agent that the assigning Bank has
complied with the provisions of the last sentence of
Section 12.6.
Upon receipt of the foregoing items and the consents of the
Company and the Agent, (x) the Assignee shall be deemed
automatically to have become a party hereto and, to the extent
that rights and obligations hereunder have been assigned and
delegated to such Assignee, such Assignee shall have the rights
and obligations of a Bank hereunder and under the other
instruments and documents executed in connection herewith and
(y) the assigning Bank, to the extent that rights and obligations
hereunder have been assigned and delegated by it, shall be
released from its obligations hereunder. The Agent may from time
to time (and upon the request of the Company or any Bank after
any change therein shall) distribute a revised Schedule I
indicating any changes in the Banks party hereto or the
respective Percentages of such Banks. Within five Business Days
after the Company's receipt of notice from the Agent of the
effectiveness of any such assignment and delegation, the Company
shall execute and deliver to the Agent (for delivery to the
relevant Assignee) new Notes in favor of such Assignee and, if
the assigning Bank has retained Loans and a Commitment hereunder,
replacement Notes in favor of the assigning Bank (such Notes to
be in exchange for, but not in payment of, the Notes previously
held by such assigning Bank). Each such Note shall be dated the
date of the predecessor Notes. The assigning Bank shall promptly
mark the predecessor Notes "exchanged" and deliver them to the
Company. Any attempted assignment and delegation not made in
accordance with this Section 13.4.1 shall be null and void.
The foregoing consent requirement shall not be
applicable in the case of, and this Section 13.4.1 shall not
restrict, any assignment or other transfer by any Bank of all or
any portion of such Bank's Loans to any Federal Reserve Bank;
provided that such Federal Reserve Bank shall not be considered a
"Bank" for purposes of this Agreement.
Section 13.4.2. Participations. Any Bank may at any
time sell to one or more commercial banks or other Persons (any
such commercial bank or other Person being herein called a
"Participant") participating interests in any of its Loans, its
Commitment or any other interest of such Bank hereunder;
provided, however, that
(a) no participation contemplated in this
Section 13.4.2 shall relieve such Bank from its Commitment
or its other obligations hereunder;
(b) such Bank shall remain solely responsible for the
performance of its Commitment and such other obligations
hereunder and such Bank shall retain the sole right and
responsibility to enforce the obligations of the Company
hereunder, including the right to approve any amendment,
modification or waiver of any provision of this Agreement
(subject to Section 13.4.2(d) below);
(c) the Company and the Agent shall continue to deal
solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement;
(d) no Participant, unless such Participant is an
affiliate of such Bank, or is itself a Bank, shall be
entitled to require such Bank to take or refrain from taking
any action hereunder, except that such Bank may agree with
any Participant that such Bank will not, without such
Participant's consent, take any actions of the type
described in the third sentence of Section 13.1;
(e) the Company shall not be required to pay any
amount under Sections 4.1, 6.4 or 7.1 that is greater than
the amount which the Company would have been required to pay
had no participating interest been sold;
(f) no Participant may further participate any inter-
est in any Committed Loan (and each participation agreement
shall contain a restriction to such effect). The Company
acknowledges and agrees that, to the extent permitted by
applicable law, each Participant shall be considered a Bank
for purposes of Sections 7.1, 7.4, 13.5 and 13.6, and by its
acceptance of a participation herein, each Participant
agrees to be bound by the provisions of Section 6.2(b) as if
such Participant were a Bank; and
(g) such Bank shall have provided to the Agent
evidence reasonably satisfactory to the Agent that such Bank
has complied with the provisions of the last sentence of
Section 12.6.
Section 13.5. Costs, Expenses and Taxes. The Company
agrees to pay on demand (a) all out-of-pocket costs and expenses
of the Agent (including the fees and out-of-pocket expenses of
counsel for the Agent (and of local counsel, if any, who may be
retained by said counsel) in an amount not to exceed an amount
separately agreed to between the Agent and the Company), in
connection with the preparation, execution, delivery and adminis-
tration of this Agreement, the Notes and all other instruments or
documents provided for herein or delivered or to be delivered
hereunder or in connection herewith and (b) all out-of-pocket
costs and expenses (including reasonable attorneys' fees and
legal expenses and allocated costs of staff counsel) incurred by
the Agent and each Bank in connection with the enforcement of
this Agreement, the Notes or any such other instruments or
documents. Each Bank agrees to reimburse the Agent for such
Bank's pro rata share (based upon its respective Percentage) of
any such costs or expenses incurred by the Agent on behalf of all
the Banks and not paid by the Company other than any fees and
out-of-pocket expenses of counsel for the Agent which exceed the
amount which the Company has agreed with the Agent to reimburse.
In addition, the Company agrees to pay, and to hold the Agent and
the Banks harmless from all liability for, any stamp or other
Taxes which may be payable in connection with the execution and
delivery of this Agreement, the borrowings hereunder, the issu-
ance of the Notes or the execution and delivery of any other
instruments or documents provided for herein or delivered or to
be delivered hereunder or in connection herewith. All obliga-
tions provided for in this Section 13.5 shall survive repayment
of the Loans, cancellation of the Notes or any termination of
this Agreement.
Section 13.6. Indemnification. In consideration of
the execution and delivery of this Agreement by the Agent and the
Banks, the Company hereby agrees to indemnify, exonerate and hold
each of the Banks, the Agent, and each of the officers, direc-
tors, employees and agents of the Banks and Agent (collectively
herein called the "Bank Parties" and individually called a "Bank
Party") free and harmless from and against any and all actions,
causes of action, suits, losses, liabilities, damages and
expenses, including, without limitation, reasonable attorneys'
fees and disbursements (collectively herein called the "Indemni-
fied Liabilities"), incurred by the Bank Parties or any of them
as a result of, or arising out of, or relating to (i) this Agree-
ment, the Notes or the Loans or (ii) the direct or indirect use
of proceeds of any of the Loans or any credit extended hereunder,
except for any such Indemnified Liabilities arising on account of
such Bank Party's gross negligence or willful misconduct, and if
and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Company hereby agrees to make
the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under appli-
cable law. All obligations provided for in this Section 13.6
shall survive repayment of the Loans, cancellation of the Notes
or any termination of this Agreement.
Section 13.7. Regulation U. Each Bank represents that
it in good faith is not relying, either directly or indirectly,
upon any margin stock (as such term is defined in Regulation U
promulgated by the Board of Governors of the Federal Reserve
System) as collateral security for the extension or maintenance
by it of any credit provided for in this Agreement.
Section 13.8. Extension of Termination Dates; Removal
of Banks; Substitution of Banks. (a) Not more than 90 days nor
less than 60 days prior to the then-effective Termination Date,
the Company may, at its option, request all the Banks then party
to this Agreement to extend their scheduled Termination Dates by
one calendar year by means of a letter, addressed to each such
Bank and the Agent, substantially in the form of Exhibit J. Each
such Bank electing (in its sole discretion) so to extend its
scheduled Termination Date shall execute and deliver prior to the
30th day following receipt of such request counterparts of such
letter to the Company and the Agent, whereupon (unless Banks with
an aggregate Percentage in excess of 25% decline to extend their
respective scheduled Termination Dates, in which event the Agent
shall notify all the Banks thereof and no such extension shall
occur), such Bank's scheduled Termination Date shall be extended
to February 2 of the year immediately succeeding such Bank's
then-current scheduled Termination Date. Any Bank that declines
or fails to respond to the Company's request for such extension
shall be deemed to have not extended its scheduled Terminate
Date.
(b) With respect to any Bank (i) on account of which
the Company is required to make any deductions or withholdings or
pay any additional amounts, as contemplated by Section 6.4,
(ii) on account of which the Company is required to pay any
additional amounts, as contemplated by Section 7.1, (iii) for
which it is illegal to make a LIBOR Rate Loan, as contemplated by
Section 7.3 or (iv) which has declined to extend such Bank's
scheduled Termination Date and Banks with an aggregate Percentage
in excess of 75% have elected to extend their respective Termi-
nation Dates, the Company may in its discretion, upon not less
than 30 days' prior written notice to the Agent and each Bank,
remove such Bank as a party hereto. Each such notice shall
specify the date of such removal (which shall be a Business Day
and, if such Bank has any outstanding Bid Loans, shall (unless
otherwise agreed by such Bank) be on or after the last day of the
Loan Period for the Bid Loan of such Bank having the latest
maturity date), which shall thereupon become the scheduled
Termination Date for such Bank.
(c) In the event that any Bank does not extend its
scheduled Termination Date pursuant to subsection (a) above or is
the subject of a notice of removal pursuant to subsection (b)
above, then, at any time prior to the Termination Date for such
Bank (a "Terminating Bank"), the Company may, at its option,
arrange to have one or more other commercial banks or financial
institutions (which may be a Bank or Banks and each of which
shall herein be called a "Successor Bank") succeed to all or a
percentage of the Terminating Bank's outstanding Loans, if any,
and rights under this Agreement and assume all or a like
percentage (as the case may be) of such Terminating Bank's
undertaking to make Loans pursuant hereto and other obligations
hereunder (as if (i) in the case of any Bank electing not to
extend its scheduled Termination Date pursuant to subsection
(a) above, such Successor Bank had extended its scheduled
Termination Date pursuant to such subsection (a) and (ii) in the
case of any Bank that is the subject of a notice of removal
pursuant to subsection (b) above, no such notice of removal had
been given by the Company). Such succession and assumption shall
be effected by means of one or more agreements supplemental to
this Agreement among the Terminating Bank, the Successor Bank,
the Company and the Agent. On and as of the effective date of
each such supplemental agreement, each Successor Bank party
thereto shall be and become a Bank for all purposes of this
Agreement and to the same extent as any other Bank hereunder and
shall be bound by and entitled to the benefits of this Agreement
in the same manner as any other Bank.
(d) On the Termination Date for any Terminating Bank,
such Terminating Bank's Commitment shall terminate and the
Company shall pay in full all of such Terminating Bank's Loans
(except to the extent assigned pursuant to subsection (c) above)
and all other amounts payable to such Bank hereunder (including
any amounts payable pursuant to Section 7.4 on account of such
payment); provided that if an Event of Default or Unmatured Event
of Default exists on the date scheduled as any Terminating Bank's
Termination Date, such Terminating Bank's scheduled Termination
Date shall be extended to the first Business Day thereafter on
which (i) no Event of Default or Unmatured Event of Default
exists (without regard to any waiver or amendment that makes this
Agreement less restrictive for the Company, other than as
described in clause (ii) below) or (ii) the Required Banks (which
for purposes of this subsection (d) shall be determined based
upon the respective Percentages and aggregate Commitments of all
Banks other than any Terminating Bank whose scheduled Termination
Date has been extended pursuant to this proviso) waive or amend
the provisions of this Agreement to cure all existing Events of
Default or Unmatured Events of Default or agree to permit any
borrowing hereunder notwithstanding the existence of any such
event. In the event that UBS shall become a Terminating Bank,
the Required Banks with the consent of the Company (which consent
shall not be unreasonably withheld) shall appoint another Bank or
other Person as Agent, which shall have all of the rights and
obligations of the Agent upon the effective date of and pursuant
to an agreement supplemental hereto among the Company and the
Banks, and thereupon UBS, as Agent, shall be relieved from its
obligations as Agent hereunder, it being understood that the
provisions of Section 12 shall inure to the benefit of UBS as to
any actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no such successor Agent shall be
appointed within 30 days of the Termination Date of the Agent,
then the Agent shall, on behalf of the Banks, appoint a successor
Agent in accordance with the provisions set forth in Section 12.8
for a resigning Agent.
(e) To the extent that all or a portion of any Termi-
nating Bank's obligations are not assumed pursuant to subsec-
tion (c) above, the Aggregate Commitment shall be reduced on the
applicable Termination Date and each Bank's percentage of the
reduced Aggregate Commitment shall be revised pro rata to reflect
such Terminating Bank's absence. The Agent shall distribute a
revised Schedule I indicating such revisions promptly after the
applicable Termination Date. Such revised Schedule I shall be
deemed conclusive in the absence of demonstrable error.
(f) The Agent agrees to use reasonable commercial
efforts to assist the Company in locating one or more commercial
banks or other financial institutions to replace any Terminating
Bank prior to such Terminating Bank's Termination Date.
Section 13.9. Captions. Section captions used in this
Agreement are for convenience only and shall not affect the
construction of this Agreement.
Section 13.10. Governing Law; Severability. THIS
AGREEMENT AND EACH NOTE SHALL BE A CONTRACT MADE UNDER, GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. All
obligations of the Company and the rights of the Agent, the Banks
and any other holders of the Notes expressed herein or in the
Notes shall be in addition to and not in limitation of those
provided by applicable law. Whenever possible each provision of
this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of
this Agreement shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
Section 13.11. Counterparts; Effectiveness. This
Agreement may be executed in any number of counterparts and by
the different parties on separate counterparts and each such
counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
Agreement. When counterparts of this Agreement executed by each
party shall have been lodged with the Agent (or, in the case of
any Bank as to which an executed counterpart shall not have been
so lodged, the Agent shall have received telegraphic, telex or
other written confirmation of execution of a counterpart hereof
by such Bank), this Agreement shall become effective as of the
date hereof and the Agent shall so inform all of the parties
hereto.
Section 13.12. Further Assurances. The Company agrees
to do such other acts and things, and to deliver to the Agent and
each Bank such additional agreements, powers and instruments, as
the Agent or any Bank may reasonably require or deem advisable to
carry into effect the purposes of this Agreement or to better
assure and confirm unto the Agent and each Bank their respective
rights, powers and remedies hereunder.
Section 13.13. Successors and Assigns. This Agreement
shall be binding upon the Company, the Banks and the Agent and
their respective successors and assigns, and shall inure to the
benefit of the Company, the Banks and the Agent and the respec-
tive successors and assigns of the Banks and the Agent. Subject
to Section 9.9, the Company may not assign any of its rights or
delegate any of its duties under this Agreement without the prior
written consent of all of the Banks.
Section 13.14. Waiver of Jury Trial. THE COMPANY, THE
AGENT AND EACH BANK HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
THIS AGREEMENT, ANY NOTE OR ANY AMENDMENT, INSTRUMENT, DOCUMENT
OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP
EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
Section 13.15. Amendment of 1993 Agreement. The
Company, the Agent and the Banks that are parties to the
$566,666,662 Revolving Credit Agreement, dated as of June 1,
1993, as amended (the "1993 Credit Agreement") among the Company,
the Agent and the banks parties thereto, hereby agree to amend
Section 5.1 of the 1993 Credit Agreement, effective as of the
date hereof, by replacing the phrase "30 days'" in the first
sentence with the phrase "one day's".
Delivered at Los Angeles, California as of the day and
year first above written.
INTERNATIONAL LEASE FINANCE
CORPORATION
By: /s/ Alan H. Lund
_________________________
Name: ALAN H. LUND
Title: Exec. V.P., Co-COO, CFO &
Treasurer
By: /s/ Pamela S. Hendry
________________________
Name: PAMELA S. HENDRY
Title: Assistant Vice President &
Controller
1999 Avenue of the Stars
39th Floor
Los Angeles, California 90067
Attention: Pam Hendry
Telephone: (310) 788-1999
Facsimile: (310) 788-1990
Telex: 69-1400 INTERLEAS BVHL
Agent: UNION BANK OF SWITZERLAND,
acting through its Los Angeles
Branch, in its individual
corporate capacity and as
Agent
By: /s/ Patrick J. McKenna
________________________
Name: PATRICK J. McKENNA
Title: Vice President
By: /s/ Scott Sommers
________________________
Name: SCOTT SOMMERS
Title: Vice President
444 South Flower Street
Suite 4600
Los Angeles, California 90071
Attention: L. Scott Sommers
Telephone: (213) 489-0600
Facsimile: (213) 489-0697
Telex: 6831878 UBSLSA
Co-Agents: COMMERZBANK AG, LOS ANGELES
BRANCH
By: /s/ Christian Jagenberg
______________________
Name: CHRISTIAN JAGENBERG
Title: S.V.P. and Manager
By: /s/ Werner Schmidbauer
______________________
Name: WERNER SCHMIDBAUER
Title: Vice President
660 South Figueroa Street
Suite 1450
Los Angeles, California 90017
Attention: Werner Schmidbauer
Telephone: (213) 623-8223
Facsimile: (213) 623-0039
Telex: 678338
BAYERISCHE HYPOTHEKEN-UND WECHSEL-
BANK AKTIENGESELLSCHAFT, NEW YORK
BRANCH
By: /s/ Eugene Atwell
___________________________
Name: EUGENE ATWELL
Title: Vice President
By: /s/ Steve Atwel
___________________________
Name: STEVE ATWEL
Title: Vice President
By: /s/ John Quigley
___________________________
Name: JOHN QUIGLEY
Title: Vice President
Financial Square
32 Old Slip, 32nd Floor
New York, New York 10005
Attention: Wolfgang Novotny
Telephone: (212) 440-0789
Facsimile: (212) 440-0741
Telex: 175850
THE BANK OF NEW YORK
By: /s/ Elizabeth T. Ying
_________________________
Name: ELIZABETH T. YING
Title: Assistant Vice President
10990 Wilshire Boulevard
Suite 1700
Los Angeles, California 90024
Attention: Elizabeth T. Ying
Telephone: (310) 996-8650
Facsimile: (310) 996-8667
THE BANK OF NOVA SCOTIA
By: /s/ James M. Spanier
___________________________
Name: JAMES M. SPANIER
Title: Relationship Manager
101 California Street
48th Floor
San Francisco, California 94111
Attention: James Spanier
Telephone: (415) 986-1100
Facsimile: (415) 397-0791
Telex: 00340602
DEUTSCHE BANK AG, LOS ANGELES
BRANCH & CAYMAN ISLANDS BRANCH
By: /s/ Michael U. Hotze
_________________________
Name: MICHAEL U. HOTZE
Title: Managing Director
By: /s/ Christine Lane
_________________________
Name: CHRISTINE LANE
Title: Assistant Vice President
550 S. Hope Street
Suite 1850
Los Angeles, California 90071
Attention: David Wagstaff
Telephone: (213) 627-8200
Facsimile: (213) 627-9779
DRESDNER BANK AG, LOS ANGELES
AGENCY & GRAND CAYMAN BRANCH
By: /s/ Jon M. Bland
________________________
Name: JON M. BLAND
Title: Senior Vice President
By: /s/ Barbara J. Readick
________________________
Name: BARBARA J. READICK
Title: Vice President
725 South Figueroa Street
Suite 3950
Los Angeles, California 90017-5439
Attention: Barbara J. Readick
Telephone: (213) 489-5720
Facsimile: (213) 627-3819
Telex: 4720286
SOCIETE GENERALE
By: /s/ J. Blaine Shaum
_______________________
Name: J. BLAINE SHAUM
Title: Regional Manager
2029 Century Park East
Suite 2900
Los Angeles, California 90067
Attention: Maureen Kelly
Telephone: (310) 788-7110
Facsimile: (310) 551-1537
Telex: 188273
Lead Managers: THE DAI-ICHI KANGYO BANK, LTD.,
LOS ANGELES AGENCY
By: /s/ Tomohiro Nozaki
__________________________
Name: TOMOHIRO NOZAKI
Title: Senior Vice President and
Joint General Manager
555 West 5th Street
Fifth Floor
Los Angeles, California 90013
Attention: David K. Henry
Telephone: (213) 243-4760
Facsimile: (213) 624-5258
Telex: 67-4 516/DKB-LSA
THE SAKURA BANK LTD.,
LOS ANGELES AGENCY
By: /s/ Ofusa Sato
_______________________
Name: OFUSA SATO
Title: Senior Vice President &
Assistant General Manager
Name: _________________________
Title: ________________________
515 South Figueroa Street
Suite 400
Los Angeles, California 90071
Attention: Robert L. Mann
Telephone: (213) 489-6431
Facsimile: (213) 623-8692
Telex: 67-7185
DAIWA BANK TRUST COMPANY
By: /s/ Masafumi Asai
________________________
Name: MASAFUMI ASAI
Title: Vice President
75 Rockefeller Plaza
New York, New York 10019
Attention: Masafumi Asai
Telephone: (212) 554-7051
Facsimile: (212) 554-7152
Telex: RCA 276626
ROYAL BANK OF CANADA
By: /s/ Michael J. Madnick
_________________________
Name: MICHAEL J. MADNICK
Title: Manager
1 Financial Square
Corporate Banking East, U.S.A.
New York, New York 10005-3531
Attention: D.G. Calancie
Telephone: (212) 428-6445
Facsimile: (212) 428-6459
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK AND
CAYMAN ISLANDS BRANCHES
By: /s/ Elie Khoury
_______________________
Name: ELIE KHOURY
Title: Vice President
By: /s/ Laura Spichiger
_______________________
Name: LAURA SPICHIGER
Title: Associate
1211 Avenue of the Americas
24th Floor
New York, New York 10036
Attention: Laura Spichiger
Telephone: (212) 852-6012
Facsimile: (212) 852-6148
Managers: BANCO DI NAPOLI S.p.A.
By: /s/ Vito Spada
__________________________
Name: VITO SPADA
Title: Executive Vice President
By: /s/ Claude P. Mapes
__________________________
Name: CLAUDE P. MAPES
Title: First Vice President
277 Park Avenue
New York, New York 10172
Attention: Claude P. Mapes
Telephone: (212) 872-2435
Facsimile: (212) 872-2426
Telex: 420634
BANCA NAZIONALE DEL LAVORO,
S.p.A. - NEW YORK BRANCH
By: /s/ Giulio Giovine
_________________________
Name: GIULIO GIOVINE
Title: Vice President
By: /s/ Carlo Vecchi
________________________
Name: CARLO VECCHI
Title: Senior Vice President
25 West 51st Street
New York, New York 10019
Attention: Adolph Mascaci
Telephone: (212) 581-0710
Facsimile: (212) 765-2978
Telex: 62840
BAYERISCHE LANDESBANK GIROZENTRALE
By: /s/ Wilfried Freudenberger
____________________________
Name: Wilfried Freudenberger
Title: Executive Vice President
and General Manager
By: /s/ Peter Obermann
___________________________
Name: PETER OBERMANN
Title: First Vice President and
Manager Lending Division
560 Lexington Avenue
22nd Floor
New York, New York 10022
Attention: Joanne Cicino
Telephone: (212) 310-9834
Facsimile: (212) 310-9868
Telex: TRT 177130
THE MITSUI TRUST & BANKING COMPANY,
LIMITED, LOS ANGELES AGENCY
By: /s/ Ken Takahashi
___________________________
Name: KEN TAKAHASHI
Title: General Manager
611 West 6th Street
Suite 3800
Los Angeles, California 90017
Attention: John C. Korthuis
Telephone: (213) 614-7156
Facsimile: (213) 622-0378
BANCO CENTRAL HISPANOAMERICANO,
SAN FRANCISCO AGENCY
By: /s/ Jose Castello
__________________________
Name: JOSE CASTELLO
Title: Senior Vice President
and General Manager
By: ___________________________
Name: _________________________
Title: ______________________
505 Sansome Street
San Francisco, CA 94111
Attention: Jose Castello
Telephone: (415) 398-6333
Facsimile: (415) 398-3173
Telex: 677045 CENT SF
BANK OF HAWAII
By: /s/ Marcy E. Fleming
________________________
Name: MARCY E. FLEMING
Title: Vice President
130 Merchant Street
20th Floor
Honolulu, Hawaii 96813
Attention: Marcy E. Fleming
Telephone: (808) 537-8471
Facsimile: (808) 537-8301
Telex: 7238434
BARCLAYS BANK PLC
By: /s/ Francis C.Constantinople
____________________________
Name: FRANCIS C. CONSTANTINOPLE
Title: Vice President
222 Broadway
New York, New York 10038
Attention: Frank Constantinople
Telephone: (212) 412-7634
Facsimile: (212) 412-5610
FIRST HAWAIIAN BANK
By: /s/ Robert M. Wheeler III
_______________________________
Name: ROBERT M. WHEELER III
Title: Vice President
1132 Bishop Street
19th Floor
Honolulu, Hawaii 96813
Attention: Robert M. Wheeler
Telephone: (808) 525-6367
Facsimile: (808) 525-6372
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By: /s/ Michael Grady
____________________________
Name: MICHAEL GRADY
Title: Vice President
One First Union Center
301 South College Street, TW-10
Charlotte, NC 28288-0745
Attention: Mike Grady
Telephone: (704) 383-7514
Facsimile: (704) 374-2802
Telex: 684-3115
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By: /s/ Toshinari Iyoda
__________________________
Name: TOSHINARI IYODA
Title: Senior Vice President
350 South Grand Avenue
Suite 1500
Los Angeles, California 90071
Attention: Vicente L. Timiraos
Telephone: (213) 893-6442
Facsimile: (213) 488-9840
Telex: 673562
ISTITUTO BANCARIO SAN PAOLO
DI TORINO S.p.A.
By: /s/ Donald W. Brown
__________________________
Name: DONALD W. BROWN
Title: Branch Manager
By: /s/ Annette Bergsten
__________________________
Name: ANNETTE BERGSTEN
Title: Assistant Vice President
444 South Flower Street
Suite 4550
Los Angeles, California 90071
Attention: Glen Binder
Telephone: (213) 489-3100
Facsimile: (213) 622-2514
Telex: 220045
Participants: CIBC, INC.
By: /s/ Stephen D. Reynolds
__________________________
Name: STEPHEN D. REYNOLDS
Title: Vice President
425 Lexington Avenue
New York, New York 10017
Attention: Stephen D. Reynolds
Telephone: (212) 856-3566
Facsimile: (212) 856-3613
BANQUE NATIONALE DE PARIS
By: /s/ Christian Morio
_____________________________
Name: CHRISTIAN MORIO
Title: Senior Vice President &
Manager
By: /s/ Tjalling Terpstra
_____________________________
Name: TJALLING TERPSTRA
Title: Vice President
725 South Figueroa Street
Suite 2090
Los Angeles, California 90017
Attention: Tjalling Terpstra
Telephone: (213) 488-9120
Facsimile: (213) 488-9602
Telex: 6734168 BNPLA
CITICORP USA, INC.
By: /s/ Stephen P. Zwick
____________________________
Name: STEPHEN P. ZWICK
Title: Vice President
399 Park Avenue
12th Floor
New York, New York 10043
Attention: Peter Bickford
Telephone: (212) 559-8146
Facsimile: (212) 935-4285
Telex:
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK
By: /s/ Robert B. Herber
______________________
Name: ROBERT B. HERBER
Title: Vice President
By: /s/ Pamela D. Ingram
_______________________
Name: PAMELA D. INGRAM
Title: Assistant Vice President
609 Fifth Avenue
New York, New York 10017-1021
Attention: Robert B. Herber
Telephone: (212) 745-1581
Facsimile: (212) 745-1556
Telex: 234476/666755 MCI
KREDIETBANK NV
By: /s/ Robert Snauffer
____________________________
Name: ROBERT SNAUFFER
Title: Vice President
By: /s/ Diane Grimmig
_____________________________
Name: DIANE GRIMMIG
Title: Vice President
125 West 55th Street
10th Floor
New York, New York 10019
Attention: Roxanne Cheng
Telephone: (213) 624-0401
Facsimile: (213) 629-5801
THE TOKAI BANK, LTD.
LOS ANGELES AGENCY
By: /s/ Masahiko Saito
___________________________
Name: MASAHIKO SAITO
Title: Assistant General Manager
534 West Sixth Street
Los Angeles, California 90014
Attention: Kenji Oshigane
Telephone: (213) 892-2856
Facsimile: (213) 892-2818
Telex: 215245
THE CHUO TRUST & BANKING CO., LTD
(Los Angeles Agency)
By: /s/ Shoji Hoshikawa
___________________________
Name: SHOJI HOSHIKAWA
Title: Senior Manager
725 South Figueroa Street
Suite 1700
Los Angeles, California 90017
Attention: Shoji Hoshikawa
Telephone: (213) 955-7412
Facsimile: (213) 955-7431
THE BANK OF TOKYO LIMITED,
NEW YORK AGENCY
By: __/s/__Yukio Yanaka__
Name: YUKIO YANAKA
Title: Senior Vice President &
Manager
1251 Avenue of the Americas
New York, New York 10116-3138
THE CHASE MANHATTAN BANK, N.A.
By:__/s/__Sherwood E. Exum, Jr.__
Name: SHERWOOD E. EXUM, JR.
Title: Managing Director
One Chase Manhattan Plaza
New York, New York 10081
Attention: Sherwood E. Exum, Jr.
Telephone: (212) 552-4655
Ficsimile: (212) 552-5879
Telex: 62910
CHEMICAL BANK
By:__/s/__Thomas Delaney___
Name: THOMAS DELANEY
Title: Vice President
270 Park Avenue
New York, New York 10017
Attention: Nikolai Nachamkin
Telephone: (212) 270-1012
Facsimile: (212) 270-1469
FIRST INTERSTATE BANK OF CALIFORNIA
By:__/s/__Thomas J. Helotes__
Name: THOMAS J. HELOTES
Title: Vice President
By:__/s/__Jonathan S. David__
Name: JONATHAN S. DAVID
Title: Assistant Vice President
707 Wilshire Boulevard
U.S. Banking Division, W16-14
Los Angeles, California 90017
Attention: Thomas Helotes
Telephone: (213) 614-4122
Facsimile: (213) 614-2569
THE FUJI BANK, LIMITED
By:__/s/__Nobuhiro Umemura___
Name: NOBUHIRO UMEMURA
Title: Joint General Manager
333 South Grand Avenue
Suite 2500
Los Angeles, California 90071
Attention: Bryan Stapleton
Telephone: (213) 253-4152
Facsimile: (213) 253-4198
THE SANWA BANK LIMITED
By:__/s/__Stephen C. Small__
Name: STEPHEN C. SMALL
Title: Vice President & Area
Manager
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
Attention: Stephen C. Small
Telephone: (212) 339-6201
Facsimile: (212) 754-1304
Telex: 232423 RCA
SCHEDULE I
SCHEDULE OF BANKS
Bank Commitment
(in millions)
Union Bank of Switzerland. . . . . . . . . . . . . . $ 82.50
Commerzbank AG . . . . . . . . . . . . . . . . . . . 75.00
Bayerische Hypotheken-und Wechsel-Bank
Aktiengesellschaft. . . . . . . . . . . . . . . . . 63.75
The Bank of New York . . . . . . . . . . . . . . . . 56.25
The Bank of Nova Scotia. . . . . . . . . . . . . . . 56.25
The Bank of Tokyo Limited. . . . . . . . . . . . . . 56.25
The Chase Manhattan Bank, N.A. . . . . . . . . . . . 56.25
Chemical Bank. . . . . . . . . . . . . . . . . . . . 56.25
Deutsche Bank AG . . . . . . . . . . . . . . . . . . 56.25
Dresdner Bank AG . . . . . . . . . . . . . . . . . . 56.25
First Interstate Bank of California. . . . . . . . . 56.25
The Fuji Bank, Limited . . . . . . . . . . . . . . . 56.25
The Sanwa Bank Limited . . . . . . . . . . . . . . . 56.25
Societe Generale . . . . . . . . . . . . . . . . . . 56.25
The Dai-Ichi Kangyo Bank, Ltd. . . . . . . . . . . . 45.00
The Sakura Bank Ltd. . . . . . . . . . . . . . . . . 45.00
Daiwa Bank Trust Company . . . . . . . . . . . . . . 37.50
Royal Bank of Canada . . . . . . . . . . . . . . . . 37.50
Westdeutsche Landesbank Girozentrale . . . . . . . . 37.50
Banco di Napoli S.p.A. . . . . . . . . . . . . . . . 30.00
Banca Nazionale del Lavoro, S.p.A. . . . . . . . . . 22.50
Bayerische Landesbank Girozentrale . . . . . . . . . 22.50
The Mitsui Trust & Banking Company, Limited. . . . . 22.50
Banco Central Hispanoamericano . . . . . . . . . . . 18.75
Bank of Hawaii . . . . . . . . . . . . . . . . . . . 18.75
Barclays Bank PLC. . . . . . . . . . . . . . . . . . 18.75
First Hawaiian Bank. . . . . . . . . . . . . . . . . 18.75
First Union National Bank of North Carolina. . . . . 18.75
The Industrial Bank of Japan, Limited. . . . . . . . 18.75
Istituto Bancario San Paolo di Torino S.p.A. . . . . 18.75
CIBC, Inc. . . . . . . . . . . . . . . . . . . . . . 15.00
Banque Nationale de Paris. . . . . . . . . . . . . . 11.25
Citicorp USA, Inc... . . . . . . . . . . . . . . . . 11.25
DG Bank Deutsche Genossenschaftsbank . . . . . . . . 11.25
Kredietbank NV . . . . . . . . . . . . . . . . . . . 11.25
The Tokai Bank, Ltd. . . . . . . . . . . . . . . . . 11.25
The Chuo Trust & Banking Co., Ltd. . . . . . . . . . 7.50
SCHEDULE II
FEES AND MARGINS
(IN BASIS POINTS)
UNSUBORDINATED Aa3/AA- A2/A or A3/A-(1) Baa2/BBB Baa3/BBB-
UNSECURED or higher(1) higher but or higher or below(1)
LONG-TERM DEBT lower than but lower
RATINGS AA3/AA-(1) than A3/A-(1)
Facility Fee 9.00 10.00 12.50 25.00 37.50
Margins:
LIBOR 21.00 25.00 30.00 45.00 60.00
CD 33.50 37.50 42.50 57.50 72.50
Base -- -- -- -- --
Competitive Bid Option . . . . . As Bid by the Banks
Utilization Fee:
Borrowing(2) 5.00 5.00 5.00 5.00 5.00
_____________________________
(1) In determining the applicable fees or rate margin, the
effective date of any fee or margin change shall be the date
on which either Standard & Poor's Ratings Group or Moody's
Investors Service, Inc. announces a change in the rating of
the Company's Unsubordinated Unsecured Long-Term Debt, if
such change results in a change in any applicable fee or
rate margin. In the event of a split rating as between
Standard & Poor's Ratings Group and Moody's Investors
Service, Inc., the lower rating shall apply.
(2) Applicable when the aggregate amount of Committed Loans
outstanding is greater than 50% of the Aggregate
Commitments.
Exhibit A
FORM OF
NOTICE OF COMPETITIVE BID BORROWING
________________, 19__
Union Bank of Switzerland, as Agent
299 Park Avenue
New York, New York 10171-0026
Attention: James Broadus
Ladies and Gentlemen:
This instrument constitutes a Notice of Competitive Bid
Borrowing under, and as defined by, the $1,350,000,000 Revolving
Credit Agreement, dated as of February 2, 1995 (as amended,
modified or supplemented, the "Credit Agreement"), among
International Lease Finance Corporation (the "Company"), Union
Bank of Switzerland, in its individual corporate capacity and as
Agent, and certain financial institutions referred to therein.
Terms not otherwise expressly defined herein shall have the
meanings set forth in the Credit Agreement.
The Company hereby requests (a) Bid Loan(s), subject to
the terms of the Credit Agreement, as follows:
(a) Funding Date: ________________, 19__.
(b) Aggregate principal amount of Bid Loans requested:
$____________.
(c) Loan Period(s):(1)
Absolute Rate Loans: ___ days ___ days ___ days
LIBOR Rate Loans: __ months __ months __ months
(d) Account of the Company to be credited: __________
The officer of the Company signing this Notice of
Competitive Bid Borrowing hereby certifies that the following
statements are true on the date hereof and will be true on the
proposed Funding Date:
(a) Before and after giving effect to the Bid Loans
requested hereby, no Event of Default or Unmatured
Event of Default shall have occurred and be continuing
or shall result from the making of such Loan; and
(b) Before and after giving effect to the Bid Loans
requested hereby, the representations and warranties
set forth in Section 8 of the Credit Agreement shall be
true and correct in all material respects as of the
date of such requested Loans with the same effect as
though made on the date of such Bid Loans.
Very truly yours,
INTERNATIONAL LEASE FINANCE
CORPORATION
By:_________________________
Its:________________________
_________________
(1) The Company may select up to three loan periods per Notice of
Competitive Bid Borrowing.
Exhibit B
FORM OF
BID FROM [Name of Bank]
(Contact Person:___________)
______________, 19__
Union Bank of Switzerland, as Agent
299 Park Avenue
New York, New York 10171-0026
Attention: James Broadus
Ladies and Gentlemen:
This instrument constitutes a Bid under, and as defined
by, the $1,350,000,000 Revolving Credit Agreement, dated as of
February 2, 1995 (as amended, modified or supplemented, the
"Credit Agreement"), among International Lease Finance
Corporation (the "Company"), Union Bank of Switzerland in its
individual capacity and as Agent, and certain financial
institutions referred to therein, including the undersigned.
Terms not otherwise expressly defined herein shall have the
meanings set forth in the Credit Agreement.
(1) The Company's related Notice of Competitive Bid
Borrowing, dated _____________, 19__, inviting this Bid has
requested a Bid Loan, subject to the terms and conditions of
the Credit Agreement, in the aggregate principal amount of
$____________ with a Funding Date of _______________, 19__.
(2) The undersigned hereby offers to make the
following Bid Loan(s) on the Funding Date:(1)
___________________
(1) $10,000,000 or a higher integral multiple of $1,000,000.
(a) Loan Period of ___ days ___ months
Principal Amount Interest Rate or
+
Minimum Maximum LIBOR - Margin
1. $(1) $(1) (2)
2. $(1) $(1) (2)
3. $(1) $(1) (2)
4. $(1) $(1) (2)
(3) The undersigned's lending office for the proposed
Bid Loan is _______________________________.
(4) The undersigned acknowledges that the offer(s) set
forth above, subject to the satisfaction of the applicable
conditions precedent set forth in the Credit Agreement,
irrevocably obligate(s) the undersigned to make the Bid Loan(s)
for which an offer(s) are accepted, in whole or in part, in
accordance with the terms of the Credit Agreement.
Very truly yours,
[NAME OF BANK]
By:__________________________
Its:_________________________
______________________
(1) $10,000,000 or a higher integral multiple of $1,000,000 for
each interest rate (i.e., Portion) for each Loan Period.
(2) Specify the interest rate per annum (expressed as a
percentage to four decimal places) in the case of an
Absolute Rate Loan and the margin above or below LIBOR in
the case of a LIBOR Rate Loan.
Exhibit C
FORM OF
COMMITTED LOAN REQUEST
______________, 19__
Union Bank of Switzerland, as Agent
299 Park Avenue
New York, New York 10171-0026
Attention: James Broadus
Ladies and Gentlemen:
This constitutes a Committed Loan Request under, and as
defined by, the $1,350,000,000 Revolving Credit Agreement, dated
as of February 2, 1995 (as amended, modified or supplemented, the
"Credit Agreement"), among International Lease Finance
Corporation (the "Company"), Union Bank of Switzerland, in its
individual capacity and as Agent, and certain financial
institutions referred to therein. Terms not otherwise expressly
defined herein shall have the meanings set forth in the Credit
Agreement.
The Company hereby requests that the Banks make
Committed Loans to it, subject to the terms and conditions of the
Credit Agreement, as follows:
(a) Funding Date: _________________, 19__.
(b) Aggregate principal amount of Committed Loans
requested: $______________.
(c) Loan Period: ___________.
(e) Type of Loans: [LIBOR Rate Loans] [Base Rate
Loans] [CD Rate Loans]
The officer of the Company signing this Committed Loan
Request hereby certifies that:
(a) Before and after giving effect to the Committed Loans
requested hereby, no Event of Default or Unmatured
Event of Default shall have occurred and be continuing
or shall result from the making of such Loans;
(b) Before and after giving effect to the Loans requested
hereby, the representations and warranties set forth in
Section 8 of the Credit Agreement shall be true and
correct in all material respects with the same effect
as though made on the date of such Loans; and
(c) After the making of the Loans requested hereby, the
aggregate principal amount of all outstanding Loans
will not exceed the Aggregate Commitment.
Very truly yours,
INTERNATIONAL LEASE FINANCE
CORPORATION
By:____________________________
Its:___________________________
Exhibit D
FORM OF BID NOTE
$1,350,000,000 February 2, 1995
International Lease Finance Corporation, a California
corporation (the "Company"), for value received, hereby promises
to pay to the order of [NAME OF BANK] (the "Bank"), at the New
York branch office of Union Bank of Switzerland, as Agent (the
"Agent"), at 299 Park Avenue, New York, New York 10171-0026 on
February __, 1998, or at such other place, to such other person
or at such other time and date as provided for in the
$1,350,000,000 Revolving Credit Agreement (as amended, modified
or supplemented, the "Credit Agreement"), dated as of
February __, 1995, among the Company, the Agent, and the
financial institutions named therein, in lawful money of the
United States, the principal sum of $1,350,000,000 Dollars or, if
less, the aggregate unpaid principal amount of all Bid Loans made
by the Bank to the Company pursuant to the Credit Agreement.
This Bid Note shall bear interest as set forth in the Credit
Agreement for Bid Borrowings (as defined in the Credit
Agreement).
Except as otherwise provided in the Credit Agreement
with respect to LIBOR Rate Loans, if interest or principal on any
loan evidenced by this Note becomes due and payable on a day
which is not a Business Day (as defined in the Credit Agreement)
the maturity thereof shall be extended to the next succeeding
Business Day, and interest shall be payable thereon at the rate
herein specified during such extension.
This Note is one of the Bid Notes referred to in the
Credit Agreement. This Note is subject to prepayment in whole or
in part, and the maturity of this Note is subject to
acceleration, upon the terms provided in the Credit Agreement.
This Note shall be governed by, and construed and
interpreted in accordance with, the laws of the State of
California, without reference to principles of conflicts of law.
All Bid Loans made by the Bank to the Company pursuant
to the Credit Agreement and all payments of principal thereof may
be indicated by the Bank upon the grid attached hereto which is a
part of this Note. Such notations shall be rebuttable
presumptive evidence of the aggregate unpaid principal amount of
all Bid Loans made by the Bank pursuant to the Credit Agreement.
INTERNATIONAL LEASE FINANCE CORPORATION
By_____________________________________
Title:
Bid Loans and Payments of Principal
Name of
Principal Amount of Unpaid Person
Funding Amount Interest Interest Loan Principal Principal Making
Date of Loan Method Rate Period Paid Balance Notation
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Exhibit E
FORM OF COMMITTED NOTE
$_______________ February 2, 1995
International Lease Finance Corporation, a California
corporation (the "Company"), for value received, hereby promises
to pay to the order of [NAME OF BANK] (the "Bank"), at the New
York branch office of Union Bank of Switzerland, as Agent (the
"Agent"), at 299 Park Avenue, New York, New York 10171-0026 on
February __, 1998, or at such other place, to such other person
or at such other time and date as provided for in the
$1,350,000,000 Revolving Credit Agreement (as amended, modified
or supplemented, the "Credit Agreement"), dated as of
February __, 1995, among the Company, the Agent, and the
financial institutions named therein, in lawful money of the
United States, the principal sum of $_________ Dollars or, if
less, the aggregate unpaid principal amount of all Committed
Loans made by the Bank to the Company pursuant to the Credit
Agreement. This Committed Note shall bear interest as set forth
in the Credit Agreement for Base Rate Loans, CD Rate Loans and
LIBOR Rate Loans (as defined in the Credit Agreement), as the
case may be.
Except as otherwise provided in the Credit Agreement
with respect to LIBOR Rate Loans, if interest or principal on any
loan evidenced by this Note becomes due and payable on a day
which is not a Business Day (as defined in the Credit Agreement)
the maturity thereof shall be extended to the next succeeding
Business Day, and interest shall be payable thereon at the rate
herein specified during such extension.
This Note is one of the Committed Notes referred to in
the Credit Agreement. This Note is subject to prepayment in
whole or in part, and the maturity of this Note is subject to
acceleration, upon the terms provided in the Credit Agreement.
This Note shall be governed by, and construed and
interpreted in accordance with, the laws of the State of
California, without reference to principles of conflicts of law.
All Committed Loans made by the Bank to the Company
pursuant to the Credit Agreement and all payments of principal
thereof may be indicated by the Bank upon the grid attached
hereto which is a part of this Note. Such notations shall be
rebuttable presumptive evidence of the aggregate unpaid principal
amount of all Committed Loans made by the Bank pursuant to the
Credit Agreement.
INTERNATIONAL LEASE FINANCE CORPORATION
By_____________________________________
Title:
Bid Loans and Payments of Principal
Name of
Principal Amount of Unpaid Person
Funding Amount Interest Interest Loan Principal Principal Making
Date of Loan Method Rate Period Paid Balance Notation
- ------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------
Exhibit F
FIXED CHARGE COVERAGE RATIO(1)
FOR THE PERIOD ENDED SEPTEMBER 30, 1994
12 Months Ended
September 30, 1994
(Dollars in thousands)
Earnings
Net Income . . . . . . . . . . . . . . . . $208,487,000
Add:
Provision for income taxes. . . . . . . . 124,699,000
Fixed charges . . . . . . . . . . . . . . 390,637,000
Less:
Capitalized interest. . . . . . . . . . . (41,909,000)
Earnings as adjusted (A). . . . . . . . . . 681,914,000
Preferred dividend requirements . . . . . . $5,814,000
Ratio of income before provision for
income taxes to net income. . . . . . . 158%
Preferred dividend factor on
pretax basis. . . . . . . . . . . . . 9,197,000
Fixed charges
Interest expense. . . . . . . . . . . . 348,728,000
Capitalized interest. . . . . . . . . . 41,909,000
Estimate of minimum rents under
operating leases representing the
interest factor . . . . . . . . . . . . 0
Fixed charges as adjusted . . . . . . . . . 390,637,000
Fixed charges and preferred
stock dividends (B) . . . . . . . . . . . $399,833,000
Ratio of earnings to fixed charges and
preferred stock dividends ((A) divided
by (B))(1). . . . . . . . . . . . . . . . . 1.71 to 1.00
- -----------------
(1) As calculated pursuant to Section 9.11 and the definition
of Fixed Charge Coverage Ratio set forth in Section 1.2.
Exhibit G
February 2, 1995
To the Financial Institutions and
the Agent Referred to Below
c/o Union Bank of Switzerland
444 South Flower Street
Suite 4600
Los Angeles, California 90071
Ladies and Gentlemen:
We have acted as special counsel for International
Lease Finance Corporation (the "Company") in connection with a
$1,350,000,000 Revolving Credit Agreement and a $450,000,000
Revolving Credit Agreement, in each case dated as of February 2,
1995 among the Company, Union Bank of Switzerland acting through
its Los Angeles Branch, in its individual capacity and as Agent,
and certain financial institutions ("Banks") signatory thereto
(collectively, the "Credit Agreement"). Terms defined in the
Credit Agreement are used herein as therein defined.
In our capacity as such counsel, we have examined
originals, or copies certified or otherwise identified to our
satisfaction as being true copies of such records, documents or
other instruments as in our judgment are necessary or appropriate
to enable us to render the opinions expressed below. We have
been furnished, and have relied upon, certificates of officers of
the Company with respect to certain factual matters regarding the
Company. As to matters of fact, we have also relied on the
representations and warranties made by the Company in the Credit
Agreement. In addition, we have obtained and relied upon such
certificates and assurances from public officials as we have
deemed necessary.
Except with respect to the Company and its
Subsidiaries, in our review and examination we have assumed the
authenticity of documents submitted to us as originals and the
conformity to authentic original documents of all documents
submitted to us as conformed or photostatic copies. For the
purpose of the opinions hereinafter expressed, we have assumed
the due execution and delivery, pursuant to due authorization, of
each document referred to in this opinion by each party thereto
other than the Company and its subsidiaries, that each document
constitutes the legally valid and binding obligation of each such
other party and that such other person is duly organized, validly
existing and in good standing under the laws of its jurisdiction
of organization.
We have investigated such questions of law for the
purpose of rendering this opinion as we have deemed necessary. We
are opining herein as to the effect on the subject transactions
of only United States federal law and the laws of the State of
California.
Upon the basis of the foregoing, we are of the opinion
that:
1. Each of the Company and Interlease Management
Corporation, Interlease Aviation Corporation, Atlantic
International Aviation Holdings, Inc., Aircraft SPC-1, Inc.,
Aircraft SPC-2, Inc. and ILFC Aircraft Holding Corporation has
been duly incorporated and is existing and in good standing under
the laws of the State of California.
2. The Company has the corporate power to own its
properties and conduct its business as described in the Company's
Annual Report on Form 10-K for its fiscal year ended December 31,
1993.
3. The Company has the corporate power and corporate
authority to enter into the Credit Agreement, to make the
borrowings under the Credit Agreement, to execute and deliver the
Notes and to incur the obligations provided for therein, all of
which have been duly authorized by all necessary corporate action
on the part of the Company.
4. No authorizations, consents, approvals,
registrations, filings and licenses with or from any California
or federal court or governmental agency or body are necessary for
the borrowing, the execution and delivery of the Credit Agreement
and the Notes, and the performance by the Company of its
obligations thereunder and under the Notes.
5. The Credit Agreement and the Notes have been duly
executed and delivered by the Company and constitute the legally
valid and binding obligations of the Company enforceable against
the Company in accordance with their respective terms.
6. Neither the execution and delivery of the Credit
Agreement by the Company, nor the performance thereof by the
Company on or prior to the date hereof nor the payment of the
Notes violates the Articles of Incorporation or Bylaws of the
Company, breaches or results in a default under any of the
agreements, instruments, contracts, orders, injunctions or
judgments identified to us in an officer's certificate of the
Company (a copy of which is being delivered to you concurrently
herewith) as agreements, instruments, contracts, orders,
injunctions or judgments binding on the Company or by which its
assets are bound which have provisions relating to the issuance
by the Company of debt and which the breach of, or default under,
would have a Material Adverse Effect on the Company and its
Subsidiaries taken as a whole, or violates any present federal or
California statute, rule or regulation binding on the Company or
its assets.
7. The making of the Loans and the use of the
proceeds thereof as provided in the Credit Agreement will not
violate Regulation U, G, T or X of the Board of Governors of the
Federal Reserve System.
8. The Company is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
Our opinions in paragraph 5 above as to the validity,
binding effect or enforceability of the Credit Agreement and the
Notes are subject to bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors'
rights generally, general principles of equity, including
(without limitation) concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of
specific performance or injunctive relief, regardless of whether
considered in a proceeding in equity or at law.
Our opinions rendered in paragraphs 4 and 6 above are
based upon our review only of those statutes, rules and
regulations which, in our experience, are normally applicable to
transactions of the type contemplated by the Credit Agreement and
the Notes.
In rendering our opinions in paragraph 4 above, we have
assumed that each Bank is a sophisticated financial institution
capable of evaluating the merits and risks relating to the Notes,
and that each Bank has been provided access to such information
relating to the Company as such Bank has requested.
Except as expressly set forth in paragraph 7 above, we
are not expressing any opinion as to the effect of the Agent's or
any Bank's compliance with any state or federal laws or
regulations applicable to the transactions contemplated by the
Company because of the nature of the Agent's or any Bank's
business.
This opinion is furnished to you in connection with the
Company's execution and delivery of the Credit Agreement, is
solely for your benefit and the benefit of your successors and
assigns, and may not be relied upon by, nor may copies be
delivered to, any other person, without our prior written
consent.
Very truly yours,
Exhibit H
February 2, 1995
To the Financial Institutions and
the Agent Referred to Below
c/o Union Bank of Switzerland
444 South Flower Street
Suite 4600
Los Angeles, California 90071
Ladies and Gentlemen:
I am General Counsel for International Lease Finance
Corporation (the "Company") and am rendering this opinion in
connection with a $1,350,000,000 Revolving Credit Agreement and a
$450,000,000 Revolving Credit Agreement, in each case dated as of
February 2, 1995 among the Company, Union Bank of Switzerland
acting through its Los Angeles Branch, in its individual capacity
and as Agent, and certain financial institutions ("Banks")
signatory thereto (collectively, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein as therein
defined.
I have examined originals, or copies certified or
otherwise identified to my satisfaction as being true copies, of
such documents, corporate records, certificates of public
officials and other instruments and have conducted such other
investigations of fact and law as I have deemed necessary or
advisable for purposes of this opinion. I am opining herein as
to the effect on the subject transactions of only United States
federal law and the laws of the State of California.
Upon the basis of the foregoing, I am of the opinion
that:
1. The Company is duly qualified to do business as a
foreign corporation and is in good standing under the laws of
each jurisdiction in which the ownership or leasing of its
property or the conduct of its business requires it to be so
qualified; provided, however, that the Company may not be so
qualified in certain jurisdictions, the effect of which would not
have a Material Adverse Effect on the Company.
2. To the best of my knowledge, Interlease Aviation
Corporation, ILFC Aircraft Holding Corporation, Interlease
Management Corporation, Aircraft SPC-1, Inc., Aircraft SPC-2,
Inc. and Atlantic International Aviation Holdings, Inc., a wholly
owned subsidiary of Interlease Management Corporation, are the
only domestic Subsidiaries of the Company.
3. No Subsidiary of the Company nor all of the
Subsidiaries of the Company taken as a whole is a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X promulgated
under the Securities Exchange Act of 1934, as amended.
4. There is no pending or, to the best of my
knowledge, threatened action, suit or proceeding before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its Subsidiaries which,
individually or in the aggregate, would have a Material Adverse
effect on the Company and its Subsidiaries taken as a whole.
This opinion is furnished to you in connection with the
Company's execution and delivery of the Credit Agreement, is
solely for your benefit and the benefit of your successors and
assigns, and may not be relied upon by, nor may copies be
delivered to, any other person without my prior written consent.
Very truly yours,
Julie I. Sackman
General Counsel
Exhibit I
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of ____________________, 199_
between [ASSIGNOR] (the "Assignor") and [ASSIGNEE] (the
"Assignee").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the
"Agreement") relates to the $1,350,000,000 Revolving Credit
Agreement dated as of February 2, 1995 (the "Credit Agreement")
among International Lease Finance Corporation (the "Company"),
the Assignor and Union Bank of Switzerland, in its individual
corporate capacity and as Agent (the "Agent"), and certain
financial institutions referred to therein;
WHEREAS, as provided under the Credit Agreement, the
Assignor has a Commitment to make Committed Loans in an aggregate
principal amount at any time outstanding not to exceed
$___________;
WHEREAS, Committed Loans and Bid Loans made by the
Assignor under the Credit Agreement in the respective aggregate
principal amounts of $____________ and $____________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the
Assignee all of the rights of the Assignor under the Credit
Agreement in respect of a portion of its Commitment thereunder in
an amount equal to $ (1) (the "Assigned Amount") together
with $ (1) aggregate principal amount outstanding of
Committed Loans and $ (2) aggregate principal amount
outstanding of Bid Loans (collectively, the "Assigned Loans"),
and the Assignee proposes to accept assignment of such rights and
assume the corresponding obligations from the Assignor on the
terms set forth in the Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing and
the mutual agreements contained herein, the parties hereto agree
as follows:
SECTION 1. Definitions. All capitalized terms not
otherwise defined herein shall have the respective meanings set
forth in the Credit Agreement.
- ---------------
(1) See Section 13.4.1 for minimum requirements.
(2) Assignment of Bid Loans is optional.
SECTION 2. Assignment. The Assignor hereby assigns
and sells to the Assignee all of the rights of the Assignor under
the Credit Agreement to the extent of the Assigned Amount and the
Assigned Loans, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the
Assignor under the Credit Agreement to the extent of the Assigned
Amount and the Assigned Loans. Upon the execution and delivery
hereof by the Assignor, the Assignee, the Company and the Agent
and the payment of the amounts specified in Section 3 required to
be paid on the date hereof (i) the Assignee shall, as of the date
hereof, succeed to the rights and be obligated to perform the
obligations of a Bank under the Credit Agreement with a
Commitment in an amount equal to the Assigned Amount and (ii) the
Commitment of the Assignor shall, as of the date hereof, be
reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such
obligations have been assumed by the Assignee. The assignment
provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the
assignment and sale contemplated in Section 2 hereof, the
Assignee shall pay to the Assignor on the date hereof in Federal
funds an amount equal to $_________(1). It is understood that
facility fees and utilization fees accrued to the date hereof are
for the account of the Assignor and such fees accruing from and
including the date hereof are for the account of the Assignee.
Each of the Assignor and the Assignee hereby agrees that if it
receives any amount under the Credit Agreement which is for the
account of the other party hereto, it shall receive the same for
the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such
other party.
- ------------------
(1) Amount should combine principal and face together with
accrued interest and breakage compensation, if any, to
be paid by the Assignee, net of any portion of any fee
to be paid by the Assignor to the Assignee. It may be
preferable in an appropriate case to specify these amounts
generically or by formula rather than as a fixed sum.
SECTION 4. Consent of the Company and the Agent. This
Agreement is conditioned upon the consent of the Company and the
Agent pursuant to Section 13.8 of the Credit Agreement. The
execution of this Agreement by the Company and the Agent is
evidence of this consent. Pursuant to Section 13.8 the Company
agrees to execute and deliver a Bid Note and a Committed Note,
each payable to the order of the Assignee and evidencing the
assignment and assumption provided for herein. The Company also
agrees to execute replacement Notes in favor of the Assignor if
the Assignor has retained any Commitment.
SECTION 5. Non-Reliance on Assignor. The Assignor
makes no representation or warranty in connection with, and shall
have no responsibility with respect to, the solvency, financial
condition, or statements of the Company, or the validity and
enforceability of the obligations of the Company in respect of
the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and
based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter
into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and
financial condition of the Company.
SECTION 6. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of California.
SECTION 7. Counterparts. This Agreement may be signed
in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their duly authorized
officers as of the date first above written.
[ASSIGNOR]
By____________________________
Title:
[ASSIGNEE]
By____________________________
Title:
Consented, and with
respect to Section 4,
agreed:
INTERNATIONAL LEASE FINANCE
CORPORATION
By____________________________
Title:
Consented:
UNION BANK OF SWITZERLAND,
as Agent
By____________________________
Title:
By____________________________
Title:
Exhibit J
FORM OF REQUEST FOR EXTENSION OF
TERMINATION DATE
________________, 19__
[ADDRESSED TO EACH BANK] [ADDRESSED TO THE AGENT]
Attention:
Ladies and Gentlemen:
This instrument constitutes [a notice to the Agent of]
a request for the extension of the Termination Date pursuant to
Section 13.8 of the $1,350,000,000 Revolving Credit Agreement,
dated as of February 2, 1995 (as amended, modified or
supplemented, the "Credit Agreement"), among International Lease
Finance Corporation (the "Company"), Union Bank of Switzerland,
in its individual corporate capacity and as Agent, and certain
financial institutions referred to therein. Terms not otherwise
expressly defined herein shall have the meanings set forth in the
Credit Agreement.
The Company [hereby requests that you extend your] [has
sent a letter to each Bank that is now a party to the Credit
Agreement asking such Bank to extend its] now scheduled
Termination Date under the Credit Agreement by one calendar year.
The officer of the Company signing this instrument
hereby certifies that:
(a) Before and after giving effect to the extension of the
Termination Date requested hereby, no Event of Default or
Unmatured Event of Default shall have occurred and be continuing
[and all Loans payable prior to the date hereof shall have been
paid in full]; and
(b) Before and after giving effect to the extension of the
Termination Date requested hereby, the representations and
warranties set forth in Section 8 of the Credit Agreement shall
be true and correct in all material respects with the same effect
as though made on the date hereof.
Very truly yours,
INTERNATIONAL LEASE FINANCE
CORPORATION
By:_________________________
Its:________________________
Confirmed and accepted, subject to
the terms and conditions of
the Credit Agreement, as of the
date first above written:
[NAME OF BANK]
By:____________________________
Its: