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EXHIBIT 4
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$1,000,000,000
CREDIT AGREEMENT
among
DELTA AIR LINES, INC.,
The Several Banks from Time to Time Parties Hereto,
CITICORP NORTH AMERICA, INC.,
as Administrative Agent
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
SUNTRUST BANK
as the Lead Agents
THE CHASE MANHATTAN BANK,
CREDIT LYONNAIS NEW YORK BRANCH
as the Co-Agents
Dated as of April 6, 2001
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SALOMON SMITH BARNEY, INC., as Sole Arranger and Book Manager
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TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS...........................................................................................1
Section 1.1. Definitions....................................................................................1
ARTICLE 2. AMOUNT AND TERMS OF CREDIT...........................................................................10
Section 2.1. Commitment....................................................................................10
Section 2.2. The Banks.....................................................................................10
ARTICLE 3. THE ADVANCES.........................................................................................10
Section 3.1. Minimum Amounts...............................................................................10
Section 3.2. Notice and Place of Borrowing for Advances....................................................10
Section 3.3. The Notes.....................................................................................11
Section 3.4. Interest......................................................................................11
Section 3.5. Place of Payment..............................................................................12
Section 3.6. Prepayment....................................................................................12
Section 3.7. Pro Rata Treatment............................................................................13
Section 3.8. Conversion of Advances Between Eurodollar Rate and Base Rate..................................14
Section 3.9. Failure to Borrow.............................................................................14
Section 3.10. Facility Fee.................................................................................14
Section 3.11. Termination of Credit Facility...............................................................15
Section 3.12. Maturity of Credit Facility..................................................................15
Section 3.13. Optional Reduction of Commitments............................................................15
Section 3.14. Substitution of Banks........................................................................15
Section 3.15. Capital Requirements.........................................................................16
Section 3.16. Agent Fees...................................................................................17
Section 3.17. Taxes........................................................................................18
ARTICLE 4. CONDITIONS TO EFFECTIVENESS OF AGREEMENT AND FOR BORROWINGS..........................................19
Section 4.1. Effectiveness.................................................................................19
Section 4.2. Initial and Subsequent Borrowing..............................................................21
ARTICLE 5. REPRESENTATIONS AND WARRANTIES.......................................................................22
Section 5.1. Organization; Standing, Etc...................................................................22
Section 5.2. Financial Statements..........................................................................22
Section 5.3. Litigation....................................................................................23
Section 5.4. Business; Status as Air Carrier...............................................................23
Section 5.5. Funded Debt...................................................................................23
Section 5.6. Title to Properties, Etc......................................................................23
Section 5.7. Tax Returns and Payments......................................................................24
Section 5.8. Compliance With Other Instruments.............................................................24
Section 5.9. Offering of Notes.............................................................................24
Section 5.10. Use of Proceeds..............................................................................24
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Section 5.11. Governmental Regulation......................................................................25
Section 5.12. Subsidiaries.................................................................................25
Section 5.13. ERISA........................................................................................25
Section 5.14. Environmental Matters........................................................................25
Section 5.15. Compliance With Laws.........................................................................26
ARTICLE 6. AFFIRMATIVE COVENANTS................................................................................26
Section 6.1. Insurance.....................................................................................26
Section 6.2. Payment of Taxes..............................................................................26
Section 6.3. Financial Statements..........................................................................26
Section 6.4. Maintenance of Equipment......................................................................27
Section 6.5. Inspection....................................................................................27
Section 6.6. Security for Notes............................................................................28
Section 6.7. Notice of Any Default or Event of Default.....................................................28
Section 6.8. ERISA Reporting Requirements..................................................................28
Section 6.9. Ratings.......................................................................................28
Section 6.10. Corporate Existence, Compliance with Laws....................................................28
Section 6.11. Use of Proceeds..............................................................................28
ARTICLE 7. NEGATIVE COVENANTS...................................................................................29
Section 7.1. Liens.........................................................................................29
Section 7.2. Debt..........................................................................................29
Section 7.3. Mergers; Disposition of Assets................................................................30
Section 7.4. Leases........................................................................................30
Section 7.5. Financial Covenant............................................................................30
ARTICLE 8. DEFAULTS.............................................................................................31
Section 8.1. Events of Default.............................................................................31
ARTICLE 9. YIELD PROTECTION.....................................................................................33
Section 9.1. Increased Cost of Eurodollar Rate Advances....................................................33
Section 9.2. Change of Law.................................................................................34
Section 9.3. Funding Losses................................................................................35
Section 9.4. Mandatory Repayment or Conversion on Certain Events...........................................35
Section 9.5. Survival......................................................................................35
ARTICLE 10. THE ADMINISTRATIVE AGENT............................................................................35
Section 10.1. Authorization and Action.....................................................................35
Section 10.2. Administrative Agent's Reliance, Etc.........................................................36
Section 10.3. Administrative Agent and Affiliates..........................................................36
Section 10.4. Representations of the Banks.................................................................37
Section 10.5. Events of Default............................................................................37
Section 10.6. Right to Indemnity...........................................................................37
Section 10.7. Indemnification..............................................................................38
Section 10.8. Successor Administrative Agent...............................................................38
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ARTICLE 11. MISCELLANEOUS.......................................................................................39
Section 11.1. Rights and Remedies..........................................................................39
Section 11.2. Notices......................................................................................39
Section 11.3. Expenses, Indemnification, Etc...............................................................40
Section 11.4. Amendments to this Agreement and the Notes...................................................41
Section 11.5. Agreement as to Right of Set-off, Sharing of Losses..........................................42
Section 11.6. Successors and Assigns.......................................................................43
Section 11.7. Holidays.....................................................................................44
Section 11.8. Law Governing................................................................................44
Section 11.9. Disclosure to Other Persons..................................................................44
Section 11.10. Execution and Effective Date................................................................45
Section 11.11. Representation of Banks.....................................................................45
Section 11.12. Severability................................................................................45
Section 11.13. Entire Agreement............................................................................45
Section 11.14. Jurisdiction................................................................................45
Section 11.15. Waivers of Jury Trial.......................................................................46
Exhibits and Schedules
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Exhibit A The Banks on the Effective Date............................................................ 1
Exhibit B Form of Note............................................................................... 1
Exhibit C-1 Form of Notice and Agreement Regarding Addition of Bank.................................... 1
Exhibit C-2 Form of Agreement of Existing Bank to Replace Replaced Bank................................ 1
Exhibit D Form of Assignment and Assumption Agreement................................................ 1
Schedule I Funded Debt and Secured Obligations........................................................ 1
Schedule II Subsidiaries............................................................................... 1
Schedule III Guaranty Liabilities....................................................................... 1
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of April 6, 2001 (this
"Agreement") by and among DELTA AIR LINES, INC., a corporation organized under
the laws of the State of Delaware (the "Company"), each of the financial
institutions initially a signatory hereto together with those assignees
pursuant to Section 11.6 hereof (collectively, the "Banks" and each
individually, a "Bank"), and CITICORP NORTH AMERICA, INC., in its capacity as
administrative agent for the Banks (the "Administrative Agent").
WHEREAS, in order to provide financing for the Company's
liquidity and working capital needs in the event of an actual business
interruption or if, in the Company's reasonable judgment, there is the prospect
of a business interruption, or to fund contingency plans in connection with
such business interruption, the Company has requested the Banks to make
available senior unsecured revolving credit advances under this Agreement in an
aggregate principal amount at any time outstanding up to but not exceeding
$1,000,000,000; and
WHEREAS, the Banks desire to make available to the Company
such advances on the terms and conditions contained herein;
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties hereto,
the parties hereto hereby agree as follows:
ARTICLE 1. DEFINITIONS
SECTION 1.1. DEFINITIONS.
In addition to terms defined elsewhere herein, the following
terms shall have the following meanings for the purposes of this Agreement:
"Administrative Agent" shall mean Citicorp North America,
Inc., in its capacity as administrative agent for the Banks; provided, however,
that if Citicorp North America, Inc. shall have resigned or been removed as
Administrative Agent, then "Administrative Agent" shall mean the bank selected
as Administrative Agent pursuant to the provisions of Section 10.8 hereof.
"Advance" shall mean an advance by a Bank to the Company
hereunder, which may be a Base Rate Advance or a Eurodollar Rate Advance (each
of which shall be a "Type" of Advance).
"Affected Period" means the period of four (4) consecutive
fiscal quarters ending as of the date of the then most recent consolidated
balance sheet of the Company and its Subsidiaries delivered to the
Administrative Agent pursuant to Section 5.2 or 6.3(a) or (b) but solely if a
Work Stoppage existed for a period of at least 7 consecutive days during such
period.
"Affected Period Default" shall mean a failure by the Company
to comply with Section 7.5 at any time if the period of four (4) consecutive
fiscal quarters ending as of the date of
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the then most recent consolidated balance sheet of the Company and its
Subsidiaries delivered to the Administrative Agent pursuant to Section 5.2 or
6.3(a) or (b) is an Affected Period.
"Applicable Facility Fee Rate" shall mean, as of any date of
determination, the percentage rate set forth below corresponding to the
relevant S&P Rating and Moody's Rating:
APPLICABLE
LEVEL RATING (S&P/MOODY'S) FACILITY FEE
----- -------------------- ------------
1 BBB+ or higher or Baa1 or higher 0.125%
2 Lower than Level 1 but at least BBB or 0.150%
Baa2
3 Lower than Level 2 but at least BBB- and 0.175%
Baa3
4 Lower than Level 3 but at least BBB- or 0.225%
Baa3
5 Lower than Level 4 0.300%
The Administrative Agent shall determine the Facility Fee
from time to time in accordance with the above table and notify the Company and
the Banks of such determination from time to time. In the event that the S&P
Rating and the Moody's Rating correspond to different levels on the above table
resulting in different Facility Fee determinations, then the Facility Fee will
be determined based on the level one above that level applicable to the lower
of said Ratings.
In the event only one rating agency exists or continues
rating the Company's long term senior unsecured debt, such agency's rating
shall be used for purposes of the above table. In the event that (i) neither
agency exists or continues rating the Company's long term senior unsecured debt
or (ii) the Company no longer has any outstanding long term senior unsecured
debt to be rated, the Applicable Facility Fee for the first 90 days after such
occurrence shall be the Applicable Facility Fee in effect as determined using
the above immediately prior to such occurrence. During such 90-day period, the
Administrative Agent and the Company shall negotiate in good faith to agree
upon a new pricing grid or other appropriate pricing terms. Any such new grid
or pricing terms shall be approved by the Majority Banks. In the event the
Administrative Agent, the Company and Majority Banks cannot agree upon such new
pricing grid or pricing terms by the end of such 90-day period, the Applicable
Facility Fee shall be that corresponding to level 3 of the above table for the
remainder of the term of the Agreement.
Any necessary adjustment in the Applicable Facility Fee
pursuant to the terms hereof shall become effective immediately upon any change
in a Rating.
"Applicable Margin" shall mean, as of any date of
determination, the percentage rate set forth below for each Type of Advance
corresponding to the relevant S&P Rating and Moody's Rating:
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APPLICABLE MARGIN FOR APPLICABLE MARGIN FOR
LEVEL RATING (S&P/MOODY'S) EURODOLLAR RATE ADVANCES BASE RATE ADVANCES
----- -------------------- ------------------------ --------------------
1 BBB+ or higher or Baa1 or higher 0.625% 0%
2 Lower than Level 1 but at least BBB or 0.725% 0%
Baa2
3 Lower than Level 2 but at least BBB- and .825% 0%
Baa3
4 Lower than Level 3 but at least BBB- or 1.275% 0%
Baa3
5 Lower than Level 4 1.700% 0%
The Administrative Agent shall determine the Applicable
Margin from time to time in accordance with the above table and notify the
Company and the Banks of such determination from time to time. In the event the
S&P Rating and the Moody's Rating correspond to different levels on the above
table resulting in different Applicable Margin determinations, then the
Applicable Margin will be determined based on the level one above that level
applicable to the lower of said Ratings.
In the event only one rating agency exists or continues
rating the Company's long term senior unsecured debt, such agency's rating
shall be used for purposes of the above table. In the event: (i) neither agency
exists or continues rating the Company's long term senior unsecured debt or
(ii) the Company no longer has any outstanding long term senior unsecured debt
to be rated, the Applicable Margin for the first 90 days after such occurrence
shall be the Applicable Margin in effect as determined using the above
immediately prior to such occurrence. During such 90-day period, the
Administrative Agent and the Company shall negotiate in good faith to agree
upon a new pricing grid or other appropriate pricing terms. Any such new grid
or pricing terms shall be approved by the Majority Banks. In the event the
Administrative Agent, the Company and Majority Banks cannot agree upon such new
pricing grid or pricing terms by the end of such 90-day period, the Applicable
Margin shall be that corresponding to level 3 of the above table for the
remainder of the term of the Agreement.
Any necessary adjustment in the Applicable Margin pursuant to
the terms hereof shall become effective immediately upon any change in a
Rating.
"Assignment and Assumption Agreement" shall mean an
instrument in substantially the form of Exhibit D hereto.
"Base Rate" shall mean a fluctuating interest rate per annum
in effect from time to time which rate per annum shall at all times be equal to
the higher of:
(a) the rate of interest announced publicly by Citibank
in New York, New York from time to time as Citibank's base rate; and
(b) the Federal Funds Rate for such day plus 1/2 of 1%
per annum; and
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(c) the sum (adjusted to the nearest 1/16 of one percent
or, if there is no nearest 1/16 of one percent, to the next higher
1/16 of one percent) of (i) 1/2 of 1% per annum plus (ii) the rate
obtained by dividing (x) the latest three-week moving average of
secondary market morning offering rates in the United States for
three-month certificates of deposit of major United States money
center banks, such three-week moving average (adjusted to the basis of
a year of 360 days) being determined weekly on each Monday (or, if
such day is not a Business Day, on the next succeeding Business Day)
for the three-week period ending on the previous Friday by Citibank on
the basis of such rates reported by certificate of deposit dealers to
and published by the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the basis of
quotations for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected by
Citibank by (y) a percentage equal to 100% minus the average of the
daily percentages specified during such three-week period by the Board
of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but not
limited to, any emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month Dollar non-personal
time deposits in the United States plus (iii) the average during such
three-week period of the annual assessment rates estimated by Citibank
for determining the then current annual assessment rate payable by
Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring Dollar deposits of Citibank in the United
States;
plus the Applicable Margin.
"Base Rate Advance" shall mean an Advance which bears
interest at the Base Rate.
"Business Day" shall mean any day during which national
banking associations located in New York, New York are open for the conduct of
banking business.
"Capital Leases Obligation" shall mean, with respect to any
Person, an obligation of such Person to pay rent or other amounts under a lease
that is required to be capitalized for financial reporting purposes in
accordance with GAAP. With respect to the Company or any of its Subsidiaries,
the amount of any such obligation at any time shall be the capitalized amount
shown on the then most recent consolidated balance sheet of the Company and its
Subsidiaries delivered to the Administrative Agent pursuant to Section 5.2 or
6.3(a) or (b), as determined in accordance with GAAP.
"Change in Control" shall mean that (i) any Person or two (2)
or more Persons acting in concert shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended), directly or indirectly,
of securities of the Company (or other securities convertible into such
securities) representing fifty percent (50%) or more of the combined voting
power of all securities of the Company entitled to vote in the election of
directors, other than securities having such power only by reason of the
happening of a contingency, or (ii) during any period of up to twelve (12)
consecutive months, commencing before or after the date of this Agreement,
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individuals who at the beginning of such twelve (12) month period were
directors of the Company shall cease for any reason (other than death, mental
or physical disability or retirement) to constitute a majority of the board of
directors of the Company.
"Citibank" shall mean Citibank, N.A.
"Commitment" shall have the meaning set forth in Section 2.1
hereof.
"Consolidated Aircraft Rentals" shall mean, for any period of
four consecutive fiscal quarters of the Company, the total consolidated
aircraft rent of the Company and its Subsidiaries for such period as determined
on a consolidated basis in accordance with GAAP.
"Consolidated EBITDAR" shall mean, at any time, the
consolidated operating income of the Company and its Subsidiaries for the
period (the "test period") of four (4) consecutive fiscal quarters ending as of
the date of the then most recent consolidated balance sheet of the Company and
its Subsidiaries delivered to the Administrative Agent pursuant to Section 5.2
or 6.3(a) or (b) (excluding, however, any non-cash, non-recurring charges) plus
amortization and depreciation expenses that were deducted in arriving at the
amount of such consolidated operating income for such test period plus
Consolidated Aircraft Rentals that were deducted in arriving at the amount of
such consolidated operating income for such test period, all as determined on a
consolidated basis in accordance with GAAP plus, solely if such test period is
an Affected Period, an amount equal to $580,740,000 (representing 60% of
$967,900,000 being the projected cost impact of any Work Stoppage during such
Affected Period on the basis of estimates provided by the Company to the Banks
prior to the date of this Agreement).
"Consolidated Net Debt" shall mean, at any time, debt of the
Company and its Subsidiaries appearing on the then most recent consolidated
balance sheet of the Company and its Subsidiaries (including without limitation
Capital Lease Obligations) delivered to the Administrative Agent pursuant to
Section 5.2 or 6.3(a) or (b) plus an amount equal to 800% of Consolidated
Aircraft Rentals for the period of four consecutive fiscal quarters ending as
of the date of such balance sheet of the Company minus the aggregate amount of
cash and cash equivalents and short-term investments of the Company and its
Subsidiaries on a consolidated basis as reflected on such balance sheet.
"Convertible Subordinated Debt" shall mean any debt of the
Company convertible into shares of any or all classes of stock of the Company
and containing, or issued under agreements or indentures containing, provisions
effectively subordinating the same to the debt created by this Agreement.
"Credit Facility" shall mean the credit facility extended to
the Company by the Banks pursuant hereto.
"Current Debt" shall mean any obligation for borrowed money
(including notes payable and drafts accepted representing extensions of credit
whether or not representing obligations for borrowed money) payable on demand
or within a period of one year from the date of the creation thereof.
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"Default" shall mean any of the events specified in
paragraphs (a) through (j) of Section 8.1 hereof, whether or not there has been
satisfied any requirement for giving of notice, lapse of time or the happening
of any other condition.
"Dollar" and "$" shall mean lawful money of the United States
of America.
"Effective Date" shall mean the date upon which all of the
conditions of Section 4.1 hereof have been satisfied.
"Equity" shall mean the sum of: (i) the par value (or value
stated on the books of the Company) of the capital stock of all classes of the
Company (other than the Company's Series B ESOP Convertible Preferred Stock),
(ii) the amount of additional paid-in capital and reinvested earnings of the
Company, (iii) the amount of taxes deferred and unamortized investment tax
credits under Sections 167 and 168 of the Internal Revenue Code or similar
provisions of any applicable tax law and carried on the balance sheet under
those captions, (iv) the amount of any gain on the sale and leaseback of assets
which is deferred pursuant to generally accepted accounting principles, (v) the
principal amount of any Convertible Subordinated Debt outstanding, (vi) the
amount of any postretirement benefits (other than pensions) of the Company
accrued in accordance with the Statement of Financial Accounting Standards No.
106 (Financial Accounting Standards Board 1990) and generally accepted
accounting principles and classified as long term liabilities on the balance
sheet of the Company, and (vii) the difference between (a) the stated and
liquidation value of the Company's Series B ESOP Convertible Preferred Stock
and (b) the unearned compensation under the Company's employee stock ownership
plan; minus (viii) the unrealized loss on noncurrent marketable equity
securities, net of any deferred tax benefits, and minus (ix) treasury stock at
cost.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time and any successor statute.
"Eurodollar Business Days" shall mean any day on which banks
are scheduled to be open for business and quoting interest rates for Dollar
deposits on the London interbank market and which is also a Business Day.
"Eurodollar Lending Office" shall mean, with respect to each
Bank, the office of such Bank identified as such from time to time to the
Administrative Agent and the Company as the office of such Bank or of its
affiliate at which the Eurodollar Rate Advances held by such Bank are to be
maintained.
"Eurodollar Rate" shall mean a rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) determined by the
Administrative Agent pursuant to the following formula:
Eurodollar Rate = LIBOR plus Applicable Margin.
"LIBOR" shall mean, with respect to any Interest Period for Eurodollar Rate
Advances, the offered rate in the London interbank market for deposits in
United States dollars of amounts equal or comparable to the principal amount of
such Eurodollar Rate Advance offered for a term
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comparable to such Interest Period, as currently shown on the Reuters Screen
LIBO page as of 11:00 a.m., GMT, two Eurodollar Business Days prior to the
first day of such Interest Period; provided, however, that (A) if more than one
offered rate as described above appears on the Reuters Screen LIBO page, the
rate used to determine LIBOR will be the arithmetic average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of such offered rates, or (B) if no
such offered rates appear, the rate used for such Interest Period will be the
arithmetic average (rounded upward, if necessary, to the next higher 1/100 of
1%) of rates quoted by the Reference Banks at approximately 10:00 a.m., New
York time, two Eurodollar Business Days prior to the first day of such Interest
Period for deposits in United States dollars offered to leading European banks
for a period comparable to such Interest Period in an amount comparable to the
principal amount of such Eurodollar Rate Advances. If the Administrative Agent
ceases to use the Reuters Screen LIBO page for determining interest rates based
on eurodollar deposit rates, a comparable internationally recognized interest
rate reporting service shall be used to determine such offered rates.
"Eurodollar Rate Advance" shall mean any Advance which bears
interest at the Eurodollar Rate.
"Event of Default" shall mean any one of the events specified
in paragraphs (a) through (j) of Section 8.1 hereof, provided that any
requirement for notice or lapse of time or other condition contained therein
has been satisfied.
"Existing Credit Agreement" shall mean the Credit Agreement,
dated as of May 2, 1997, among the Company, the several financial institutions
which are parties thereto and NationsBank, NA. (South), as Agent Bank, as
amended, restated, modified, renewed, refunded, replaced or refinanced (in
whole or in part) from time to time.
"Facility Fee" shall mean the fee required to be paid to the
Administrative Agent, for the account of the Banks, by the Company pursuant to
Section 3.10 hereof.
"Federal Funds Rate" shall mean a fluctuating interest rate
per annum equal for any day to the weighted average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day on such transactions received by Citibank from three
Federal funds brokers of recognized standing selected by it.
"Funded Debt" shall mean any obligation for borrowed money or
the deferred purchase price of property, or any Capital Lease Obligation, other
than Convertible Subordinated Debt, payable more than one year from the date of
the creation thereof which, under generally accepted accounting principles in
effect from time to time, is shown on the balance sheet of the obligor as a
liability; provided that any obligation shall be treated as Funded Debt,
regardless of its term, if such obligation is renewable pursuant to the terms
thereof or of a revolving credit or similar agreement effective for more than
one (1) year after the date of the creation of such
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obligation or may be payable out of the proceeds of a similar obligation
pursuant to the terms of such obligation or of any such agreement.
"GAAP" shall mean the generally accepted accounting
principles in the United States as in effect from time to time.
"Immediate Replacement Event" shall mean a change in any law,
rule, or regulation, or any change in the interpretation or administration
thereof; or, a new law, rule, or regulation, having any of the consequences
specified in Section 9.1 hereof.
"Interest Period" shall mean, for each Eurodollar Rate
Advance, the period beginning on the date of such Advance or conversion thereof
or on the last day of an immediately preceding Interest Period for such Advance
and ending one, two, three, or six months later, as specified in the notice
given by the Company to the Administrative Agent; provided, however, that if
the last day of any Interest Period would fall on a day which is not a
Eurodollar Business Day that Interest Period shall be extended to the next
succeeding day which is a Eurodollar Business Day, unless the result of such
extension should be to carry such Interest Period to the next succeeding
calendar month in which event such Interest Period shall end on the immediately
preceding Eurodollar Business Day, further provided that any Interest Period
that would extend beyond the Termination Date shall end on such date.
"Interest Rate" shall mean:
(a) With respect to a Eurodollar Rate Advance, the
Eurodollar Rate; and
(b) With respect to a Base Rate Advance, the Base Rate.
"Liens" shall have the meaning set forth in Section 7.1
hereof.
"Majority Banks" shall mean, as of any date, Banks on such
date having Credit Exposures (as defined below) aggregating at least 51% of the
aggregate Credit Exposures of all the Banks on such date. For purposes of the
preceding sentence, the amount of the "Credit Exposure" of each Bank shall be
equal to the aggregate principal amount of the Advances owing to such Bank plus
the unutilized amount of such Bank's Commitment.
"Moody's" shall mean Moody's Investors Service, Inc.
"Moody's Rating" shall mean, at any time, the rating of the
Company's long-term, senior unsecured non-credit-enhanced debt most recently
announced by Moody's.
"Net Debt to EBITDAR Ratio" shall mean, at any time, the
ratio of (i) Consolidated Net Debt determined as at such time to (ii)
Consolidated EBITDAR determined as at such time.
"Notes" shall have the meaning set forth in Section 3.3
hereof.
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"Officer's Certificate" shall mean a certificate signed by
the Chairman of the Board, the President, or a principal financial officer of
the Company.
"Orderly Replacement Event" shall mean, as to any Eurodollar
Rate Advance, the determination by the Administrative Agent not later than two
(2) Eurodollar Business Days prior to the first day of any Interest Period
that: (a) for any reason whatsoever rates are not quoted for the offering of
Dollars in the London interbank market for deposit for a period comparable to
such Interest Period; or (b) the quoted rate for purposes of computing the rate
of interest on the Eurodollar Rate Advance does not accurately reflect the
funding cost to the Banks of making or maintaining such Advances.
"Other Taxes" shall have the meaning set forth in Section
3.17(b) hereof.
"Person" shall mean and include an individual, a partnership,
a joint venture, an estate, a corporation, a trust, an unincorporated
organization, a limited liability company, and a government or any department
or agency or political subdivision thereof.
"Rating" shall mean the Moody's Rating or the S&P Rating.
"Reference Bank" shall mean Citibank, N.A., The Chase
Manhattan Bank and SunTrust Bank, and each of their respective successors and
assigns.
"Required Number" shall mean in the case of notices relating
to Advances hereunder to the Administrative Agent: (a) relative to borrowings,
elections of, and conversions into, the Eurodollar Rate, selections of Interest
Periods and other transactions in respect of Eurodollar Rate Advances, not less
than three (3) Eurodollar Business Days, (b) relative to prepayments of
Eurodollar Rate Advances, not less than two (2) Eurodollar Business Days and
(c) relative to all transactions in respect to Base Rate Advances, the same
Business Day.
"S&P" shall mean Standard & Poor's Ratings Services.
"S&P Rating" shall mean, at any time, the rating of the
Company's long-term senior unsecured non-credit-enhanced debt most recently
announced by S&P.
"Specified Event of Default" shall mean any default in the
observance or performance of any Specified Restrictive Provision or the
occurrence of any Specified Restrictive Provision structured as an event of
default.
"Specified Restrictive Provision" shall have the meaning set
forth in Section 11.4 hereof.
"Subsidiary" shall mean any corporation, association or other
business entity, a majority (by number of votes) of the outstanding stock or
other ownership interest of which is, at the time at which any determination is
being made, owned by the Company either directly or through Subsidiaries.
"Taxes" shall have the meaning set forth in Section 3.17(a)
hereof.
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"Termination Date" shall mean the date two (2) years after
the Effective Date unless the Credit Facility is earlier terminated in
accordance with the terms of this Agreement; provided that, if such date is not
a Business Day, the Termination Date shall be the immediately preceding
Business Day.
"Total Commitments of the Banks" shall have the meaning set
forth in Section 2.1 hereof.
"Work Stoppage" shall mean the commencement by any labor
union representing employees of the Company of a strike against the Company,
which has the effect of causing the Company to cancel 35% or more of its
scheduled flights in a day.
ARTICLE 2. AMOUNT AND TERMS OF CREDIT
SECTION 2.1. COMMITMENT.
Each Bank severally agrees to make Advances to the Company
from time to time on any Business Day from the Effective Date until the
Termination Date in the manner and upon, and subject to, the terms and
conditions hereinafter set forth in an aggregate amount at any one time
outstanding up to but not exceeding such Bank's Commitment as set forth in
Exhibit A hereto, as such Commitment may have been adjusted from time to time
in accordance with the terms of this Agreement and, as to all Banks, in an
aggregate amount at any one time outstanding up to but not exceeding
$1,000,000,000. Within the limits of each Bank's Commitment, the Company may
from time to time borrow, prepay pursuant to Section 3.6 and reborrow pursuant
to this Section 2.1. The obligation of each Bank to make Advances to the
Company is hereby referred to as such Bank's "Commitment" and collectively as
the "Total Commitments of the Banks".
SECTION 2.2. THE BANKS.
See Exhibit A hereto.
ARTICLE 3. THE ADVANCES
SECTION 3.1. MINIMUM AMOUNTS.
Each borrowing of Advances hereunder shall be in the amount
of $25,000,000 or an integral multiple of $1,000,000 in excess thereof.
SECTION 3.2. NOTICE AND PLACE of Borrowing for Advances.
The Company shall give written, facsimile or telephonic
(confirmed immediately in writing) notice to the Administrative Agent, such
notice to be given not later than 11:00 a.m. New York City time on a Business
Day which is at least the Required Number of days prior to each borrowing of
Advances and to contain the date of such borrowing, the amount of such
borrowing,
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the Interest Rate option selected, and, where applicable, the length of the
Interest Period. Upon receiving notice from the Company, the Administrative
Agent shall promptly give written, facsimile or telegraphic notice to each
Bank, such notice to contain the date of such borrowing, the amount to be
borrowed from such Bank, the Interest Rate option selected, and, where
applicable, the length of the Interest Period. Funds are to be disbursed
pursuant to this Agreement at the office of the Administrative Agent referred
to in Section 11.2 hereof. Not later than 11:00 a.m. (or, in the case of any
permitted same-day notice of borrowing, 2:00 p.m.) New York City time on the
date of borrowing of Advances as specified in the notice from the
Administrative Agent to the Banks, each Bank shall have made available at the
office of the Administrative Agent referred to in Section 11.2 hereof, in
immediately available funds, the amount of Advances to be advanced by such
Bank, and the Administrative Agent shall immediately pay such funds to or upon
the order of the Company. Unless the Administrative Agent shall have received
notice from a Bank prior to the date of any such borrowing that such Bank will
not make available to the Administrative Agent such Bank's ratable portion of
such borrowing, the Administrative Agent may assume that such Bank has made
such portion available to the Administrative Agent on the date of such
borrowing in accordance with this Section 3.2, and the Administrative Agent
may, in reliance upon such assumption, make available to the Company on such
date a corresponding amount. If and to the extent such Bank shall not have made
such ratable portion available to the Administrative Agent, such Bank and the
Company severally agree to repay to the Administrative Agent immediately on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Company and until the date
such amount is repaid to the Administrative Agent, at (i) with respect to the
Company, the Interest Rate applicable at the time to the type of Advance
comprising such borrowing, or (ii) with respect to the Bank, at the applicable
overnight federal funds rate. If such Bank shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute such
Bank's advance as part of such borrowing for purposes of this Agreement.
SECTION 3.3. THE NOTES.
The Advances made pursuant to this Agreement by each Bank
shall be evidenced by a promissory note executed and delivered by the Company
in form substantially the same as Exhibit B attached hereto and made a part
hereof, each dated the date of this Agreement, each drawn to the order of such
Bank in the amount of such Bank's respective Commitment, and each maturing on
the Termination Date. Such promissory notes are hereinafter referred to as the
"Notes" and each as a "Note". Each Bank's records with respect to advances and
repayments of Advances hereunder shall, absent manifest error, be deemed to
prevail as to the Company's obligations hereunder.
SECTION 3.4. INTEREST.
The Company shall pay interest on the outstanding principal
amount of each Advance for the period commencing on the date of each such
Advance until such Advance shall be due and payable at the rates and times set
forth below:
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(a) Interest on Eurodollar Rate Advances. Subject to the
provisions of subsection (c) immediately below, interest on each Eurodollar
Rate Advance shall be payable (i) on the last day of each Interest Period with
respect thereto, provided, however, that if such Interest Period is for a
period of duration in excess of three (3) months, then such interest shall also
be payable on the date three (3) months after the first day of such Interest
Period, (ii) on the date of conversion of such Eurodollar Rate Advance to a
Base Rate Advance and (iii) at maturity of such Advance (and after maturity of
such Advance (whether by acceleration or otherwise) upon demand), at an
interest rate per annum during the Interest Period for such Advance equal to
the Eurodollar Rate for the Interest Period in effect for such Eurodollar Rate
Advance. Each determination by the Administrative Agent of an Interest Rate
hereunder shall be conclusive and binding on the Banks and the Company for all
purposes, absent manifest error.
(b) Interest on Base Rate Advances. Subject to the
provisions of subsection (c) immediately below, interest on each Base Rate
Advance shall be payable monthly in arrears on the last day of each calendar
month of each year and at maturity at an interest rate per annum equal to the
Base Rate.
(c) Interest Upon Event of Default. If any payment of
principal or interest on any Advance which is not paid when due, as herein
provided, whether at stated maturity, by mandatory prepayment, by acceleration
or otherwise, such Advance or interest thereon shall bear interest (to the
extent permitted by law) at that rate which is one-quarter of one percent
(1/4%) above the Base Rate in effect on each respective day thereafter until
paid in full and such interest shall be payable on demand.
(d) Prepayment. Upon prepayment of any Advance
hereunder, interest accrued and unpaid on the amount so prepaid shall become
due on the date of such prepayment.
(e) Computations. Interest on Base Rate Advances shall
be computed on the basis of a year of 365/366 days and an actual day month.
Interest on Eurodollar Rate Advances shall be computed on the basis of year of
360 days and an actual day month.
SECTION 3.5. PLACE OF PAYMENT.
Each payment (whether required or voluntary and whether of
principal or interest or both) on each Note and each payment of fees or other
amounts owing by the Company hereunder shall be payable, on or before 11:00
a.m., New York City time, on the due date of each payment, in immediately
available funds, to the Administrative Agent at its address referred to in
Section 11.2 hereof at such account as the Administrative Agent shall from time
to time notify the Company in writing. The Administrative Agent shall then
immediately transmit the applicable pro rata share of such payment so received
by the Administrative Agent in immediately available funds to each Bank
entitled thereto in the manner specified by such Bank. Any required payment
which would otherwise be due on a day not a Business Day shall be made on the
immediately succeeding Business Day.
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SECTION 3.6. Prepayment.
(a) Voluntary Prepayment. The Company may voluntarily
prepay, at any time and from time to time prior to maturity on the Required
Number of days' prior notice to the Administrative Agent, any part or the whole
of the principal of the Notes; provided, however, that any voluntary prepayment
shall be in a minimum amount of $25,000,000 and integral multiples of
$1,000,000 in excess thereof. Upon any such prepayment, the Company shall
simultaneously pay all accrued and unpaid interest on the amount of principal
voluntarily prepaid. However, any such prepayment of a Eurodollar Rate Advance
not made on the last day of the Interest Period therefor shall require the
Company also to pay any amounts owing pursuant to Section 9.3. All voluntary
prepayments provided for in this Section 3.6 shall be without premium or
penalty.
(b) Mandatory Prepayment. (i) Forthwith upon the
consummation by the Company or any of its Subsidiaries of any financing
consummated after the date hereof that is secured by any aircraft (excluding a
refinancing of debt existing as of the date hereof secured by any aircraft to
the extent the principal amount of any such refinancing does not exceed the
principal amount of the debt being refinanced), the Company will prepay
Advances outstanding in an aggregate amount equal to the aggregate net proceeds
of such financing, and the Commitments shall automatically be pro tanto
reduced, pro rata as among the Banks; provided that the Company shall not be
required to make any prepayment under this Section 3.6(b), and the Commitment
shall not be so reduced, except to the extent that the aggregate net proceeds
of all such financings not excluded by this subparagraph (i) after the date
hereof exceed $1,000,000,000.
(ii) In the event of the occurrence of a Change in
Control or an Affected Period Default, then (A) the Commitments shall forthwith
automatically terminate and (B) the principal of and accrued and unpaid
interest on the Advances and all other amounts payable under this Agreement and
the Notes shall, notwithstanding any other provisions of this Agreement or the
Notes, (1) in the case of a Change of Control, forthwith be prepaid in full by
the Company or (2) in the case of an Affected Period Default, be prepaid by the
Company in full no later than 60 days after the last day of the Affected Period
with respect to such Affect Period Default.
SECTION 3.7. PRO RATA TREATMENT.
Except for Section 3.14 hereof, and except with respect to
payments to be made to a Bank pursuant to Sections 3.9, 3.15, 3.17 or 11.3 and
any other indemnity in favor of Bank or Banks hereunder, (a) each borrowing
from, and utilization of and reduction of the Commitments of, the Banks
hereunder shall be prorated among the Banks according to the respective
Commitments of the Banks as set forth in Section 2.2 hereof, as the same may be
adjusted from time to time under Section 3.13, 3.14 or 3.15 hereof and (b) each
payment to the Banks hereunder shall be prorated among the Banks according to
the respective Advances (or, in the case of Facility Fees, Commitments) of the
Banks. Except as otherwise provided herein, (i) each payment on account of
principal and interest on any outstanding Advances shall be made to the
Administrative Agent for the account of the Banks pro rata in accordance with
the aggregate principal amount of all Advances then outstanding, and (ii) all
payments to be made by the
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Company for the account of each of the Banks on account of principal, interest
and fees, shall be made without set-off or counterclaim.
SECTION 3.8. CONVERSION OF ADVANCES BETWEEN EURODOLLAR RATE
AND BASE RATE.
Prior to the initial or any subsequent borrowings, the
Company will specify the Interest Rate to be applicable to such borrowings, and
on any Business Day or Eurodollar Business Day, as applicable, the Company may
convert on a pro rata basis among the Banks any outstanding Base Rate Advances
or Eurodollar Rate Advances into the other type of Advances, subject to the
following limitations:
(a) No such conversion of any Eurodollar Rate Advance
may be made except on the last day of an Interest Period with respect thereto;
and
(b) The Company shall give the Administrative Agent the
Required Number of days notice for such conversion.
If, at the end of an Interest Period of a Eurodollar Rate Advance, the Company
has failed to specify in a timely manner the Interest Rate option applicable to
such Advance for the period after the expiration of the then current Interest
Period, the Company shall be deemed to have selected that such Advance shall
bear interest at the Base Rate and, at the end of such Interest Period, such
Advance shall automatically convert to a Base Rate Advance.
SECTION 3.9. FAILURE TO BORROW.
The Company shall indemnify and hold harmless each Bank in
respect of any funding costs and/or losses in the event that any borrowing
notified to the Banks pursuant to Section 3.2, relative to Eurodollar Rate
Advances, shall not be consummated because of the Company's failure to satisfy
one or more of the applicable conditions precedent in Article 4 or because the
Company fails to borrow such Advances at the specified time.
SECTION 3.10. FACILITY FEE.
The Company shall pay to the Administrative Agent, for the
account of the Banks to be distributed to the Banks pro rata in accordance with
their respective Commitments, a Facility Fee for each day during the period
from the Effective Date to the Termination Date on the amount of the
Commitments on such day (determined after giving effect to any reduction in the
amount of the Commitments effective on such day), irrespective of usage, at the
Applicable Facility Fee Rate.
Facility Fees shall be computed on the basis of a year of 360
days, on an actual-day month. Accrued Facility Fees shall be payable in arrears
and in immediately available funds on the last day of each fiscal quarter of
the Company (commencing on June 30, 2001) and on the Termination Date. The
Administrative Agent shall forthwith pay to each Bank its ratable share of each
payment of the Facility Fee under this Section 3.10 in immediately available
funds.
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SECTION 3.11. TERMINATION OF CREDIT FACILITY.
Unless earlier terminated pursuant to the terms hereof, the
Commitments of the Banks shall terminate on the Termination Date.
SECTION 3.12. MATURITY OF CREDIT FACILITY.
The Company shall pay the entire outstanding principal amount
of, and all accrued but unpaid interest on, the Advances and Notes, together
with any and all other amounts owing by the Company to the Banks and the
Administrative Agent hereunder or under the Notes, on the Termination Date.
SECTION 3.13. OPTIONAL REDUCTION OF COMMITMENTS.
The Company shall have the right at any time or from time to
time upon not less than two (2) Business Days' prior written notice to the
Administrative Agent to reduce the Total Commitments of the Banks, in whole or
in part, provided that the aggregate amount of the Commitments of the Banks
shall not be reduced to an amount which is less than the aggregate principal
amount of the Advances then outstanding; and provided further that each partial
reduction shall be in an aggregate amount of not less than $25,000,000 and an
integral multiple of $1,000,000, and shall reduce the respective Commitments of
all the Banks proportionately. The Administrative Agent shall give prompt
written notice to each Bank of each such reduction. Once the Company
voluntarily reduces the Commitments pursuant to this Section 3.13, the Company
may not thereafter increase the Commitments.
SECTION 3.14. SUBSTITUTION OF BANKS.
3.14.1. If any Bank shall default in the performance of its
Commitment, whether in whole or in part, then:
(a) such default shall not relieve any other Bank of its
Commitment; and
(b) the Company may, with the prior written approval of
the Administrative Agent (such approval not to be unreasonably withheld),
terminate the Commitment of such defaulting Bank and arrange for the Commitment
of the defaulting Bank to be taken over by one (1) or more of the other Banks,
and to the extent that such other Banks will not take over such Commitment,
arrange for its assumption by one (1) or more banks (subject to prior written
approval of the Administrative Agent, such approval not to be unreasonably
withheld) which are not at that time parties hereto, each of which banks shall,
except as otherwise provided herein upon execution and delivery to the Company
of a counterpart hereof; become a Bank hereto to the extent of the Commitment
taken over by it; and
(c) the defaulting Bank shall immediately refund to the
Company that portion of all Facility Fees which have been paid to it by the
Company with respect to the amount of its Commitment not made available to the
Company and shall be liable to the Company for any and all additional costs and
expenses incurred by the Company in connection with arranging, obtaining and
funding any substitute loan or loans and/or substitute commitment or
commitments, provided,
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however, that neither the payments by a defaulting Bank required by this
subsection, nor any action of the Company pursuant to this Section 3.14, nor
the prepayment of Notes pursuant to Section 3.14.2 hereof shall constitute a
waiver of or release of any right which the Company shall have against the
defaulting Bank for its failure to perform its obligations hereunder.
3.14.2. Advances previously made hereunder by a defaulting or
withdrawing Bank, or any portion thereof, which are included in the Commitment
taken over by any other Bank or Banks or by a bank or banks not then parties
hereto, shall be prepaid by the Company without penalty or premium but subject
to offset of the amounts due from such withdrawing Bank pursuant to Section
3.14.1(c).
3.14.3. From time to time, the Company may replace a
non-defaulting Bank (the "Replaced Bank") with another financial institution
(or institutions) desiring to be a Bank hereunder (the "New Bank(s)") and/or
with one or more Banks already a party hereto ("Existing Bank(s)") so long as
(a) the Replaced Bank consents in writing to such replacement and receives all
amounts owing to such Replaced Bank hereunder on the effective date of such
replacement, (b) the New Bank(s) and/or Existing Bank(s), as the case maybe,
assume(s) all of the obligations of a Bank hereunder having a Commitment equal
to the Replaced Bank's by executing, in the case of a New Bank(s), a letter
agreement in substantially the form of Exhibit C-1 attached hereto or, in the
case of an Existing Bank(s), a letter agreement in substantially the form of
Exhibit C-2 hereto, (c) the Commitment(s) of the New Bank(s), together with the
additional Commitment(s) of the Existing Bank(s) assumed by the Existing
Bank(s) pursuant hereto, is equal to the Commitment of the Replaced Bank and
(d) the Company and the Administrative Agent acknowledge and consent that the
New Bank(s) shall become a Bank hereunder (and/or that the Existing Bank(s)
shall have an additional Commitment hereunder equal to that of the Replaced
Bank) by signing the respective acknowledgments contained in the appropriate
letter agreement referred to in subparagraph (b) above.
3.14.4. The respective amounts of the Commitments under
Section 2.2 hereof shall be adjusted from time to time to reflect any changes
made pursuant to this Section 3.14 and notice of such adjustments shall be
given by the Company at the time thereof to each Bank or bank then a party
hereto. Such adjusted amounts of Commitments shall thereupon become the basis
for pro rata treatment under Section 3.7 of this Agreement.
3.14.5. Upon the termination in whole of the Commitment of
any Bank or any bank which has become a party hereto, and the prepayment of all
Advances previously made under such Commitment, all as provided in this Section
3.14, such Bank or bank shall cease to be a party to this Agreement except as
otherwise provided herein.
SECTION 3.15. CAPITAL REQUIREMENTS.
If, as a result of the adoption after the date of this
Agreement, of any applicable law, rule or regulation affecting capital adequacy
or capital maintenance, or any change after the date of this Agreement in the
interpretation or administration of any law, rule or regulation affecting
capital adequacy or capital maintenance in existence as of the date hereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or
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administration thereof, or compliance by such Bank with any request or
directive affecting capital adequacy or capital maintenance (whether or not
having the force of law) of any such authority, central bank or comparable
agency, any Bank determines that such adoption, change or compliance has or
would have the effect of reducing the rate of return on such Bank's (or its
parent's) capital as a consequence of its Commitment or Advances to a level
below that which such Bank (or its parent) could have achieved but for such
adoption, change or compliance (taking into consideration such Bank's policies
with respect to capital adequacy) by an amount deemed by such Bank to be
material, such Bank shall give prompt notice to the Company and the
Administrative Agent, and then from time to time, within 15 days after
submission by such Bank to the Company (with a copy to the Administrative
Agent) of a written request therefor, the Company shall pay to such Bank such
additional amount or amounts as will compensate such Bank (or its parent) for
such reduction. Any request submitted by a Bank to the Company pursuant to this
Section 3.15 shall contain such calculations of the amounts requested therein
as such Bank shall deem reasonable in view of its customary practices, and
shall be submitted as soon as practicable, but in any event the initial such
request shall be submitted not more than 90 days after such Bank becomes aware
of the event by reason of which such request is being submitted. Subsequent
requests by such Bank shall be submitted quarterly. If any Bank requests
payment of any amount from the Company pursuant to this Section 3.15, the
Company may, pursuant to arrangements and documentation satisfactory to the
Company and the Administrative Agent, prepay the outstanding Advances, fees,
and any other amounts due to such Bank in full and terminate the Commitment of
such Bank and the Company may at its option arrange for all or part of the
Advances and Commitment of such Bank to be taken over by one (1) or more of the
other Banks and, to the extent such other Banks do not take over such Advances
and Commitment or part thereof, arrange for such Advances and Commitment to be
taken over in whole or in part by a bank or banks not a party hereto, each of
which banks shall, except as otherwise provided herein upon execution and
delivery to the Company of a counterpart hereof, become a full party hereto to
the extent of the Advances and Commitment taken over by it. Upon any bank or
banks becoming a party to this Agreement as herein provided, the Company shall
promptly furnish to all Banks which are then parties hereto the names and
addresses of such bank or banks together with the amount of the Commitment of
each such bank or banks. The respective amounts of the Commitments under
Section 2.2 hereof shall be adjusted from time to time to reflect any changes
made pursuant to this Section 3.15 and notice of such adjustments shall be
given by the Company at the time thereof to each Bank or bank then a party
hereto. Such adjusted amounts of Commitments shall thereupon become the basis
for pro rata treatment under Section 3.7 hereof. Upon the termination in whole
of the Commitment of any Bank or any bank which has become a party hereto, and
the prepayment of all Advances previously made under such Commitment, all as
provided in this Section 3.15, such Bank or bank shall cease to be a party to
this Agreement except as otherwise provided herein.
SECTION 3.16. AGENT FEES.
The Company agrees to pay to the Administrative Agent a fee
to compensate the Administrative Agent for the administration of the Credit
Facility and for other services, such fee to be agreed upon by the
Administrative Agent and the Company.
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SECTION 3.17. TAXES.
(a) All payments by the Company hereunder shall be made
free and clear of and without deduction for any present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Bank and the Administrative
Agent, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Bank or its applicable lending office
or the Administrative Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction under the laws of which
such Bank or its applicable lending office is organized or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as
"Taxes"). If the Company shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder to any Bank or the Administrative
Agent, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 3.17) such Bank or the Administrative Agent (as
the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Company shall make such deductions and
(iii) the Company shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Company agrees to pay any present
or future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement (hereinafter referred to as "Other Taxes").
(c) The Company will indemnify each Bank and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 3.17) paid by such Bank or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted;
provided that the Company shall not be required to compensate a Bank or the
Administrative Agent pursuant to this Section 3.17 for any such Taxes or Other
Taxes or any such liability in respect of which such Bank or the Administrative
Agent does not make claim hereunder within 180 days after such Bank or the
Administrative Agent received demand for payment of such Taxes or Other Taxes.
Such Bank will use reasonable efforts to contest such a Tax or Other Tax that
is, in its opinion, incorrectly asserted. This indemnification shall be made
within ten (10) days from the date such Bank or the Administrative Agent (as
the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Company will furnish to the Administrative Agent, at its address
referred to in Section 11.2, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Each Bank organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement (in the case of each Bank) and on the date of the
Assignment and Assumption Agreement pursuant to which it
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becomes a Bank (in the case of each other Bank), and from time to time
thereafter on or before the date that any such form expires or becomes obsolete
and after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Company (but only so long as such Bank
remains lawfully able to do so and if not lawfully able to do so, such Bank
shall promptly notify the Company thereof), shall provide the Company with
Internal Revenue Service form W-8BEN or W-8ECI, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from "Taxes" as defined in Section 3.17(a).
(f) For any period with respect to which a Bank has
failed to provide the Company with the appropriate form described in Section
3.17(e) (other than if such failure is due to a change in law occurring
subsequent to the date on which a form originally was required to be provided,
or if such form otherwise is not required under the first sentence of
subsection (e) above), such Bank shall not be entitled to indemnification under
Section 3.17(a) with respect to Taxes imposed by the United States to the
extent such Taxes would have been reduced by the furnishing of such form;
provided, however, that should a Bank become subject to Taxes because of its
failure to deliver a form required hereunder, the Company shall take such steps
as the Bank shall reasonably request to assist the Bank to recover such Taxes.
(g) Any Bank claiming any additional amounts payable
pursuant to this Section 3.17 shall use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction under the laws of which such Bank or its applicable lending office
is organized if the making of such a change would avoid the need for, or reduce
the amount of, any such additional amounts that may thereafter accrue and would
not, in the reasonable judgment of such Bank, be otherwise disadvantageous to
such Bank.
ARTICLE 4. CONDITIONS TO EFFECTIVENESS OF AGREEMENT
AND FOR BORROWINGS
SECTION 4.1. EFFECTIVENESS.
This Agreement shall not become effective until the
Administrative Agent shall have received the following, in form and substance
satisfactory to the Administrative Agent:
(a) The Notes dated as of the date hereof, payable to
the order of each of the Banks in the amounts of their respective Commitments,
duly executed and delivered by the Company; and
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(b) An Officer's Certificate dated as of the date hereof
stating that (i) no Default or Event of Default as of such date has occurred
and is continuing, and (ii) the representations and warranties contained in
Article 5 hereof are true on and as of such date; and
(c) An incumbency certificate dated as of the date
hereof for each officer executing this Agreement and each other person who will
sign the Notes pursuant to this Agreement on behalf of the Company; and
(d) A copy of the Company's Board of Directors'
resolutions authorizing the borrowings under this Agreement, certified by the
Secretary or an Assistant Secretary of the Company as being in full force and
effect as of the date of the Effective Date; and
(e) A favorable opinion dated as of the date hereof from
counsel for the Company stating that:
(i) The Company is a corporation duly
organized, existing and in good standing under the laws of
the State of Delaware, and the execution, delivery and
performance of this Agreement and the Notes are within the
Company's corporate powers;
(ii) The Company has the necessary corporate
power to carry on its business as then being conducted;
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which the nature of the business
conducted by it makes such qualification necessary;
(iv) The Company is a duly certificated air
carrier and there are in force all permanent or temporary
certificates or other appropriate legal authority issued by
appropriate governmental authorities to authorize the Company
to engage in intrastate, interstate, overseas and foreign air
transportation of persons, property and mail over the routes
then operated by the Company;
(v) The Company has title to all of the flight
equipment which it owns free and clear of all liens and
encumbrances except as permitted by this Agreement;
(vi) All leases of flight equipment to which the
Company is a party are valid and binding upon the lessors;
(vii) No consent of stockholders of the Company
to the chattel mortgage or mortgages referred to in Section
6.6 hereof is required by law or by the Certificate of
Incorporation or Bylaws of the Company or otherwise;
(viii) All corporate steps necessary to authorize
the execution and delivery of this Agreement and the Notes
and the Company's performance thereunder have been taken and
no consent, approval, authorization, permit or
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license from any federal, state or other regulatory authority
is required in connection therewith;
(ix) The borrowings hereunder, or the giving of
the Notes, will not violate any provision of the Delaware
Corporation Law or the Company's Certificate of Incorporation
or Bylaws or any agreement, indenture, note or other
instrument evidencing any material indebtedness for money
borrowed (including Capital Lease Obligations) to which the
Company is a party or by which the Company or its assets is
bound; and
(x) This Agreement and the Notes being issued
to evidence such borrowings are legal, valid and binding
obligations of the Company enforceable in accordance with
their respective terms, subject, however, to limitations
imposed by law in connection with bankruptcy and similar
proceedings; and
(f) A favorable opinion of Milbank, Tweed, Hadley &
McCloy LLP dated as of the date hereof stating that this Agreement and the
Notes are legal, valid and binding obligations of the Company, enforceable in
accordance with their respective terms, subject, however, to limitations
imposed by law in connection with bankruptcy and similar proceedings; and
(g) All fees (including reasonable, invoiced fees and
expenses of counsel to the Administrative Agent) and other compensation
required to be paid to the Administrative Agent or the Banks to the extent due
on or before the Effective Date.
SECTION 4.2. INITIAL AND SUBSEQUENT BORROWING.
The Banks shall not be obligated to make any Advances unless
at the time thereof the Company shall have furnished to the Administrative
Agent an Officer's Certificate bearing that date, and stating that:
(a) There exists on that date no Default or Event of
Default, and no Default or Event of Default would result from such Advance or
from the application of proceeds therefrom;
(b) There exists on that date no event of default or
default under any instrument evidencing or any agreement given in connection
with Funded Debt of the Company;
(c) Such borrowing will not contravene any agreement,
indenture or instrument to which the Company is a party or by which it may be
bound and which is material to the financial condition of the Company;
(d) The representations and warranties contained in
Sections 5.1, 5.4, 5.7(a), 5.7(c), 5.8, 5.9, 5.10, 5.11, 5.13, 5.14 and 5.15
hereof are true on and as of such date, before and after giving effect to such
Advance and to the application of the proceeds therefrom, as though made on and
as of such date (it being understood and agreed that any representation and
warranty which by its terms is made as of a specified date shall be required to
be true and correct only as of such specified date);
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(e) The extension(s) of credit being made on such date
are legal, valid and binding obligations of the Company, the resolutions of the
Board of Directors of the Company referred to in Section 4.1(d) hereof remain
in full force and effect, and the officers of the Company requesting such
Advances are duly authorized and empowered to do so; and
(f) A business interruption of the Company has occurred
or, in the Company's reasonable judgment, there is the prospect of a business
interruption and the proceeds of such Advances will be used for liquidity and
working capital needs of the Company in connection with such business
interruption, or to fund contingency plans in connection therewith such
business interruption.
Further, any conversion of a Advance from one Type to another
as contemplated by Section 3.8 hereof shall be deemed to be a representation by
the Company that the matters referred to in paragraphs (a) through (e) above
continue to be true and correct.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
The Company hereby represents, covenants and warrants to the
Administrative Agent and each of the Banks as follows:
SECTION 5.1. ORGANIZATION; STANDING, ETC.
(a) The Company is a corporation duly organized and
existing under the laws of the State of Delaware, has the corporate power to
own its property and carry on its business as being conducted, and is duly
qualified to do business as a foreign corporation and is in good standing in
every jurisdiction in which the nature of the business conducted by it makes
such qualification necessary.
(b) The execution, delivery and performance by the
Company of this Agreement have been duly authorized by all necessary corporate
action, and do not contravene any provision of law.
(c) This Agreement is the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability affecting the enforcement
of creditors' rights or equitable principles.
SECTION 5.2. FINANCIAL STATEMENTS.
The Company has furnished the Banks with the following
financial statements, identified by the certificate of a principal financial
officer of the Company: balance sheets of the Company as at June 30, 2000 and
December 31, 2000, and income and reinvested earnings statements of the Company
for the fiscal year or fiscal quarter, as the case may be, ended on such dates,
respectively, certified, in the case of financial statements for the fiscal
year ended June 30, 2000, by Arthur Andersen LLP. Such financial statements are
true and correct and have been prepared in accordance with generally accepted
accounting principles consistently followed
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throughout the periods involved. The balance sheets and their accompanying
notes present fairly the condition of the Company as of the dates thereof; and
the income and reinvested earnings statements present fairly the results of the
operations of the Company for the periods indicated. There has been no material
adverse change in the business, condition or operation of the Company since
December 31, 2000 (other than a business interruption of the kind referred to
in Section 4.2(f) hereof).
SECTION 5.3. LITIGATION.
There is no action or proceeding pending or threatened
against the Company before any court or administrative agency which, in the
reasonable opinion of the Company, is likely to be determined in a manner which
would result in any material adverse change in the condition or operation of
the Company and the Company is not in default with respect to any order, writ,
injunction or decree of any court or administrative agency, which would have a
material adverse effect on the Company.
SECTION 5.4. BUSINESS; STATUS AS AIR CARRIER.
(a) The Company is a duly certificated air carrier and
there are in force any certificates or other appropriate authority issued by
appropriate governmental authorities necessary to authorize the Company to
engage in intrastate, interstate, overseas and foreign air transportation of
persons, property and mail over the routes operated by the Company; and
(b) no proceedings are pending or threatened, by or
before any public body, agency or authority, domestic or foreign, including but
not limited to proceedings to alter, amend, modify, suspend or revoke such
certificates in whole or in part, which might seriously affect adversely the
income from, title to, or possession of, any of the properties of the Company,
to an extent which would constitute a material adverse change in the business
or condition of the Company.
SECTION 5.5. FUNDED DEBT.
The Company does not have outstanding any Funded Debt except
as set forth on Schedule I to this Agreement; and there exists no default under
the provisions of any instrument evidencing such indebtedness or agreement
relating thereto.
SECTION 5.6. TITLE TO PROPERTIES, ETC.
The Company and its Subsidiaries have good and marketable
title to their respective properties and assets, including the properties and
assets reflected in the balance sheets described in Section 5.2 hereof, subject
to no mortgage, pledge, encumbrance, lien or charge of any kind except
mortgages, pledges, encumbrances, liens or charges permitted by Section 7.1
hereof.
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SECTION 5.7. TAX RETURNS AND PAYMENTS.
(a) The Company has filed all federal income tax returns
which are required to be filed, and has paid all taxes as shown on said returns
and on all assessments received by it to the extent that such taxes (other than
those which the Company is contesting in good faith by appropriate proceedings
being diligently conducted) have become due;
(b) the federal income tax liability of the Company has
been finally determined by the Internal Revenue Service and satisfied for all
fiscal years prior to and including the fiscal year ended June 30, 1992; and
(c) all other tax returns and reports of the Company
which are required to be filed have been duly filed, and all taxes and
government charges (other than those for which payment may be withheld without
penalty or those which the Company is contesting in good faith by appropriate
proceedings being diligently conducted) upon the Company, its assets, income or
franchises which are due and payable have been paid.
SECTION 5.8. COMPLIANCE WITH OTHER INSTRUMENTS.
The Company is not a party to any contract or agreement or
subject to any charter or other corporate restriction which materially and
adversely affects its business, property or assets, or financial condition;
neither the execution nor delivery of this Agreement nor the Notes herein
described, nor fulfillment of nor compliance with the terms and provisions
hereof and of the Notes, nor the use of proceeds of any Advance, will conflict
with, or result in a breach of the terms, conditions or provisions of, or
constitute a default under, the Certificate of Incorporation or Bylaws of the
Company or of any agreement or instrument to which the Company is now a party,
which breach would have a material adverse effect on the condition or operation
of the Company.
SECTION 5.9. OFFERING OF NOTES.
Neither the Company nor any agent acting on its behalf has
offered the Notes to be issued hereunder for sale to, or solicited any offers
to buy the said Notes from, any Person other than the Banks signatory to this
Agreement, and neither the Company nor any agent acting on its behalf will take
any action which would subject the issuance or sale of the said Notes to the
provisions of Section 5 of the Securities Act of 1933, as amended.
SECTION 5.10. USE OF PROCEEDS.
The proceeds of the Advances shall be used for the purposes
described in the recitals hereto and to pay related fees and expenses. No part
of the proceeds of the Advances will be used in a manner that would violate
Regulation U or X of the Board of Governors of the Federal Reserve System. The
Company is not engaged, principally or as one of the Company's important
activities, in the business of purchasing or carrying any "margin stock" as
such term is defined in Regulation U of the Board of Governors of the Federal
Reserve System. After giving effect to each use of the proceeds of the
Advances, not more than 25% of the value of the assets
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of the Company and its Subsidiaries (determined on a consolidated basis) shall
be represented by "margin stock".
SECTION 5.11. GOVERNMENTAL REGULATION.
No consent, approval, authorization, permit or license from
any federal, state or other regulatory authority is required in connection with
the making, delivery or performance of this Agreement or the Notes by the
Company, or the use of proceeds of the Advances, except as have been obtained
and are in full force and effect.
SECTION 5.12. SUBSIDIARIES.
Schedule II is a complete and correct list of all
Subsidiaries as of the date hereof, all of which are corporations duly
incorporated, in good standing and with corporate power to transact the
business presently conducted by them. Except as disclosed in Schedule II, the
Company owns, directly or indirectly through one or more Subsidiaries, all the
shares of each of such Subsidiaries (except directors' qualifying shares, if
any), and all such shares are validly issued, fully paid and non-assessable and
are free and clear of all liens and rights of others whatsoever.
SECTION 5.13. ERISA.
The Company and each Subsidiary have met their minimum
funding requirements under the Employee Retirement Income Security Act of 1974,
as amended from time to time, with respect to all their employee benefit plans
covered by the minimum funding requirements of said Act, and have not incurred
any material liability to the Pension Benefit Guaranty Corporation (or any
entity succeeding to any or all of said Corporation's functions under said Act)
under said Act in connection with any such plan.
SECTION 5.14. ENVIRONMENTAL MATTERS.
The Company and its Subsidiaries are in substantial
compliance with all applicable federal, state and local environmental laws,
regulations and ordinances governing their respective business, properties or
assets with respect to discharges into the ground and surface water, emissions
into the ambient air and generation, storage, transportation and disposal of
waste materials or process by-products, except such noncompliances as are not
likely to have a material adverse effect on the property, assets, business,
operations or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole. All licenses, permits or registrations required
for the business of the Company and its Subsidiaries under any federal, state
or local environmental laws, regulations or ordinances have been secured, and
the Company and each Subsidiary are in substantial compliance therewith, except
such licenses, permits or registrations the failure to secure or to comply
therewith are not likely to have a material adverse effect on the property,
assets, business, operations or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole.
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SECTION 5.15. COMPLIANCE WITH LAWS.
The Company and each of its Subsidiaries is in compliance
with all laws, statutes, rules, regulations and orders binding on or applicable
to the Company, its Subsidiaries and all of their respective properties, except
to the extent failure to so comply could not (either individually or in the
aggregate) reasonably be expected to have a material adverse effect on the
Company and its Subsidiaries, taken as a whole.
ARTICLE 6. AFFIRMATIVE COVENANTS
The Company covenants and agrees that until all of its
obligations hereunder have been discharged and the obligations of the Banks to
make Advances terminated, it will:
SECTION 6.1. INSURANCE.
Keep adequately insured, by financially sound and reputable
insurers, all property of the character usually insured by corporations engaged
in the same or similar businesses similarly situated, against loss or damage of
the kind customarily insured against by such corporations, and carry adequate
liability insurance and other insurance of a kind generally carried by
corporations engaged in the same or similar businesses similarly situated;
provided, however, that nothing herein contained shall be construed to mean
that a deductibility clause in any such insurance, which, in effect, results in
self-insurance of a level or portion of losses considered reasonable by the
Company's management, shall render such insurance inadequate; and provided,
further, that in the case of a lease to the United States Government or an
agency thereof of any aircraft or other property, indemnity therefrom by the
United States Government will be considered adequate insurance against the
risks that are the subject of any such indemnity.
SECTION 6.2. PAYMENT OF TAXES.
Duly file all federal income tax returns and all other tax
returns and reports which, to the knowledge of the officers of the Company are
required to be filed and pay when due all taxes and governmental charges
assessed against it, its assets, income or franchises, except to the extent and
so long as contested in good faith.
SECTION 6.3. FINANCIAL STATEMENTS.
Deliver to each Bank, so long as such Bank shall hold any
Note issued or Advance made hereunder or is committed to lend hereunder:
(a) As soon as practicable and in any event within two
(2) months after the end of each quarterly period (other than the last
quarterly period in each fiscal year) an income statement of the
Company for the period from the beginning of the current fiscal year
to the end of such quarterly period, and a balance sheet of the
Company as at the end of such quarterly period, setting forth in each
case in comparative form figures for the corresponding period in the
preceding fiscal year, all in reasonable detail and certified by a
principal financial officer of the Company, subject to changes
resulting from year-end
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adjustments; and a statement as of the end of such quarterly period of
the calculations made by the Company establishing its compliance with
the provisions of Sections 7.1, 7.2, 7.4 and 7.5 hereof, in sufficient
detail to permit the Banks to determine how the conclusions on such
statement were arrived at, certified by a principal financial officer
of the Company as accurate in all material respects;
(b) As soon as practicable and in any event within three
(3) months after the end of each fiscal year, an income statement and
a statement of reinvested earnings of the Company for such year, and a
balance sheet of the Company as at the end of such year, setting forth
in each case in comparative form corresponding figures from the
preceding annual audit, all in reasonable detail and satisfactory in
scope to the Banks and certified by independent certified public
accountants of national standing selected by the Company; and a
statement as of the end of such fiscal year of the calculations made
by the Company establishing its compliance with the provisions of
Sections 7.1, 7.2, 7.4 and 7.5 hereof in sufficient detail to permit
the Banks to determine how the conclusions on such statement were
arrived at, certified by a principal financial officer of the Company
as accurate in all material respects;
(c) Copies of all financial statements, reports and
returns which it shall send to its stockholders;
(d) Promptly after the sending or filing thereof, copies
of all periodic reports, if any, which the Company shall have filed
with the Securities and Exchange Commission (or any governmental
agency or agencies substituted therefor) under ss.13 or ss.15(d) of
the Securities Exchange Act of 1934, as amended, or with any national
securities exchange;
(e) As soon as practicable and in any event not later
than six (6) weeks after the end of each fiscal quarter of the
Company, an Officer's Certificate in reasonable detail demonstrating
compliance with Section 7.5 hereof as of the last day of such fiscal
quarter; and
(f) With reasonable promptness such other financial data
as any Bank may reasonably request through the Administrative Agent.
SECTION 6.4. MAINTENANCE OF EQUIPMENT.
Maintain substantially all of its equipment (except surplus
or obsolete equipment) in good operating order.
SECTION 6.5. INSPECTION.
Permit any Person designated by any Bank in writing to visit
and inspect any of the properties, corporate books and financial records of the
Company and its Subsidiaries at the Bank's expense, and to discuss the affairs,
finances, and accounts of any such corporation with the principal officers of
the Company, all at such reasonable times and as often as such Bank may
reasonably request. This covenant shall be subject to applicable governmental
and industrial security regulations.
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SECTION 6.6. SECURITY FOR NOTES.
In the event the Company secures by mortgage, pledge,
encumbrance, lien or other charge any debt other than as permitted by Section
7.1 hereof, the Company shall secure equally and ratably the indebtedness
incurred hereunder.
SECTION 6.7. NOTICE OF ANY DEFAULT OR EVENT OF DEFAULT.
As soon as practicable (but in any event not more than five
(5) days after the Chairman of the Board, the President, or a principal
financial officer of the Company obtains knowledge of a Default or an Event of
Default as specified in Article 8 hereof), the Company will deliver to each
Bank an Officer's Certificate specifying the nature thereof, the period of
existence thereof and what action the Company has taken or proposes to take
with respect thereto.
SECTION 6.8. ERISA REPORTING REQUIREMENTS.
With respect to any employee benefit plan subject to Title IV
of ERISA, the Company shall, if requested by the Administrative Agent, provide
the Administrative Agent with copies of the most recent annual reports or
returns (IRS Form 5500), audited or unaudited financial statements and
actuarial valuations with respect to such plans. In addition, the Company shall
provide the Administrative Agent copies of any notice filed with the Pension
Benefit Guaranty Corporation with respect to any "Reportable Event" as defined
in Section 4043 of ERISA, and the Administrative Agent shall forward copies of
any such notice to the Banks.
SECTION 6.9. Ratings.
Notify the Administrative Agent promptly after the Company
becomes aware of any public announcement of the occurrence of any change in the
S&P Rating or the Moody's Rating.
SECTION 6.10. CORPORATE EXISTENCE, COMPLIANCE WITH LAWS.
The Company will (i) maintain its corporate existence and
(ii) comply, and cause each Subsidiary to comply, with all applicable laws,
statutes, rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and applicable environmental laws, except for
any non-compliance which could not (either individually or in the aggregate)
reasonably be expected to have a material adverse effect on the Company.
SECTION 6.11. USE OF PROCEEDS.
The Company will use the proceeds of the Advances solely for
liquidity and working capital needs in the event of an actual business
interruption or if, in the Company's reasonable judgment, there is the prospect
of a business interruption, or to fund contingency plans in connection with
such business interruption.
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ARTICLE 7. NEGATIVE COVENANTS
Until all of its obligations hereunder have been discharged
and the obligations of the Banks to make advances terminated, the Company
covenants that it will not and will not permit any Subsidiary to:
SECTION 7.1. LIENS.
Create, assume or suffer to exist any mortgage, pledge,
encumbrance, lien or charge of any kind (collectively, "Liens") upon any of its
property or assets, whether now owned or hereafter acquired, except: (i) Liens
where the aggregate indebtedness secured by such Liens at any time does not
exceed the sum of (a) the greater of $3,000,000,000 or fifteen percent (15%) of
Equity plus (b) the amount outstanding under the obligations described on
Schedule I hereof as "Secured"; (ii) liens for taxes not yet due or which are
being contested in good faith; (iii) other liens, charges and encumbrances
incidental to the conduct of its business or the ownership of its property and
assets which were not incurred to secure the repayment of borrowed money or
other advances or credit, and which do not in the aggregate materially detract
from the value of its property or assets or materially impair the use thereof
in the operation of its business; (iv) liens imposed by law, such as carriers',
warehousemen's, mechanics', materialmen's and vendors' liens, for sums not yet
due or already due but the validity of which is being contested in good faith;
(v) Liens on property or assets of a Subsidiary to secure obligations of such
Subsidiary to the Company or another Subsidiary; (vi) any Lien required by
Section 6.6 hereof; (vii) Liens on aircraft or aircraft engines owned by the
Company or any Subsidiary on or before the date hereof or thereafter acquired
by the Company or any Subsidiary, in either case to secure the payment of all
or any part of the purchase price thereof or to secure any obligation incurred
or for which a firm commitment is obtained prior to, at the time of, or after,
the acquisition of such property for the purpose of financing all or any part
of the purchase price thereof; provided, however, that in the case of this
clause (vii), (A) the related indebtedness shall be permitted under Section 7.2
hereof; (B) any such Lien shall attach only to such aircraft and aircraft
engines so acquired or to be acquired; (C) the Lien securing such indebtedness
shall be created within 180 days of such acquisition; (D) no Default or Event
of Default shall then exist or be created thereby; and (E) in the case of any
Liens covering aircraft or aircraft engines owned by the Company or any
Subsidiary on or before the date hereof, the aggregate indebtedness secured
thereby shall not at any time exceed $1,500,000,000.
SECTION 7.2. DEBT.
Create, incur, assume or suffer to exist, for the Company and
the Subsidiaries taken together, (a) Current Debt in an aggregate principal
amount at any one time outstanding in excess of 100% of all accounts receivable
of the Company and its Subsidiaries outstanding as of the last day of the
second calendar month next preceding the month in which such calculation of
Current Debt is made, all computed in accordance with generally accepted
accounting principles as in effect from time to time; or (b) Convertible
Subordinated Debt in excess of 33.3% of Equity; or (c) Funded Debt, Current
Debt (other than Convertible Subordinated Debt) and all Guaranty Liabilities
(as defined below) in an amount at any one time which exceeds 150% of Equity at
such time. For purposes of this Section 7.2, "Guaranty Liabilities" shall mean
all liabilities of the
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Company and any Subsidiary of the Company as guarantor, surety, accommodation
endorser or other accommodation party on behalf of any Person where the
underlying obligation of such Person covered by, or the subject of, such
guaranty or contingent undertaking would constitute Current Debt or Funded
Debt, as defined herein, if such Person were the Company; provided, however,
that (x) guarantees or other contingent undertakings by the Company on behalf
of any Subsidiary, by any Subsidiary on behalf of any other Subsidiary, or by
any Subsidiary on behalf of the Company and (y) the contingent undertakings as
set forth on Schedule III hereto, shall not constitute Guaranty Liabilities.
SECTION 7.3. MERGERS; DISPOSITION OF ASSETS.
Merge or consolidate with any corporation or sell, lease or
transfer or otherwise dispose of all or a substantial part of its assets in any
transaction or series of related transactions, except that (i) any Subsidiary
may merge or consolidate with the Company or any one or more other
Subsidiaries; (ii) any Subsidiary may sell, lease, transfer or otherwise
dispose of any of its assets to the Company or another Subsidiary; (iii) any
Subsidiary may sell or otherwise dispose of all or substantially all of its
assets, provided that (a) such sale or other disposition is for a consideration
which represents fair value (as determined in good faith by the Company) at the
time of such sale or disposition, and (b) the assets so disposed of do not
constitute a substantial part of the aggregate assets of the Company and the
Subsidiaries; (iv) the Company may dispose of aircraft in the ordinary course
of its business, provided that such sale or other disposition is for a
consideration which represents fair value (as determined in good faith by the
Company) at the time of such sale or disposition; and (v) the Company may merge
or consolidate with another corporation, provided that (a) the Company shall be
the continuing or surviving corporation, (b) a majority of the board of
directors of the Company for a period of six (6) months after the effective
date of such merger consists of individuals who were directors of the Company
twelve (12) months prior to such effective date, and (c) immediately after such
merger or consolidation there shall exist no Event of Default as defined in
Article 8 hereof.
SECTION 7.4. LEASES.
Enter into or permit to remain in effect any flight equipment
lease agreements which, as of the close of any fiscal year, cause the Company's
Consolidated Aircraft Rentals for such fiscal year to exceed eight percent (8%)
of the Company's consolidated operating revenues for such fiscal year, provided
that any such lease agreements as may be necessary in connection with
interchange agreements between the Company and other airline related businesses
shall not be included in such calculation.
SECTION 7.5. FINANCIAL COVENANT.
The Company will not permit the Net Debt to EBITDAR Ratio at
any time to exceed 5.0 to 1.0.
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ARTICLE 8. DEFAULTS
SECTION 8.1. EVENTS OF DEFAULT.
Upon the occurrence of any one of the following Events of
Default:
(a) Default in any principal payment or mandatory
prepayment of any Note when due; or
(b) Default in the payment of any interest or Facility
Fees when due hereunder and the continuance thereof for five (5) days;
or
(c) The Company shall institute a voluntary case seeking
liquidation or reorganization under Chapter 7 or Chapter 11,
respectively, of the United States Bankruptcy Code, or shall consent
to the institution of an involuntary case thereunder against it; or
the Company shall otherwise institute any similar proceeding under any
other applicable federal or state law, or shall consent thereto, or
the Company shall apply for, or by consent or acquiescence there shall
be an appointment of, a custodian, receiver, liquidator, sequestrator,
trustee or other officer with similar powers, for the Company, or for
all or a material part of its properties; or the Company shall make an
assignment for the benefit of creditors, or the Company shall have
ceased to pay its debts generally as they become due; or if an
involuntary case shall be commenced seeking the liquidation or
reorganization of the Company under Chapter 7 or Chapter 11,
respectively, of the United States Bankruptcy Code or any similar
proceeding shall be commenced against the Company under any other
applicable federal or state law and (i) the petition commencing the
involuntary case is not timely controverted, (ii) the petition
commencing the involuntary case is not dismissed within forty-five
(45) days of its filing, (iii) an interim trustee is appointed to take
possession of all or a portion of the property and/or to operate all
or any part of the business of the Company, or (iv) an order for
relief (other than the petition itself) shall have been issued or
entered therein; or a decree or order of a court having jurisdiction
in the premises for the appointment of a custodian, receiver,
liquidator, sequestrator, trustee or other officer having similar
powers for the Company or for all or a part of its properties, shall
have been entered; or any other similar relief shall be granted
against the Company under any applicable federal or state law; or
(d) Default in the observance or performance of any of
the affirmative or negative covenants of the Company hereunder (other
than any such default constituting an Affected Period Default) and,
where there has been a default in an affirmative covenant of the
Company, such default shall not have been remedied within thirty (30)
days after written notice thereof shall have been given to the Company
by any Bank through the Administrative Agent; or
(e) Any representation or warranty made by the Company
herein or in any certificate furnished to the Banks hereunder proves
to have been false or breached in any material respect on the date as
of which made or on the date of any extension of credit hereunder, or
any statement or certificate furnished by the Company pursuant hereto
shall
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prove to have been false in any material respect at any date as of
which the facts therein set forth were stated or certified; or
(f) Seizure under any legal process of a substantial
share of the assets of the Company if release is not obtained within
thirty (30) days of such seizure; or
(g) Default in any payment of principal or interest on
any other obligation for borrowed money or the deferred purchase price
of property beyond any period of grace provided with respect thereto,
or in the payment of any Capital Lease Obligations, or in the
performance or observance of any other agreement, term or condition
contained in any agreement under which any such obligation is created,
if the effect of such default is to cause, or permit the holder or
holders of such obligation (or a trustee acting on behalf of such
holder or holders) to cause, such obligation to become due prior to
its stated maturity, provided such obligations or agreements have
aggregate outstanding amounts of $25,000,000 or more; or
(h) The Company shall have failed to meet its minimum
funding requirements under the Employee Retirement Income Security Act
of 1974, as amended from time to time (including any rules or
regulations promulgated thereunder) with respect to any of its
employee benefit plans which are covered by Title IV of said Act (or
to which ss.412 of the Internal Revenue Code of 1986, as amended,
applies), which failure has resulted in a material liability for
excise tax under ss.4971 of said Code, or any of its plans aforesaid
shall be the subject of voluntary or involuntary termination
proceedings which may result in an uninsured payment or repayment
liability of the respective corporation to the Pension Benefit
Guaranty Corporation (or any entity succeeding to any or all of its
functions under said Act) in an amount which is material in relation
to the net worth of the Company; or
(i) A Specified Event of Default shall occur; or
(j) One or more judgments or orders for the payment of
money (not paid and not fully covered by a reputable and solvent
insurance company) in an aggregate amount in excess of $25,000,000
shall be rendered against the Company or any of its Subsidiaries and
either (i) enforcement proceedings shall have been commenced by any
creditor upon any such judgment or order and such proceedings shall
not have been stayed or (ii) there shall be any period of 60
consecutive days during which a stay of enforcement of any such
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect;
then, in the event that an Event of Default under (a), (b), or (d) through (j)
above should occur, the Majority Banks (through the Administrative Agent) may,
at their option, by a written notice to the Company, if such Event of Default
be continuing at the time such notice is received by the Company, either: (i)
declare the obligations of the Banks to extend credit to the Company hereunder
to be immediately terminated, whereupon such obligations shall terminate; or
(ii) declare the Advances to be forthwith due and payable whereupon the
Advances, with accrued interest thereon, shall become forthwith due and payable
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Company; or (iii) all of the
foregoing. In the event that an Event of Default under (c) above should occur,
the Total
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Commitments of the Banks shall automatically terminate and the principal of and
accrued interest on any Advances then outstanding and any accrued fees shall
automatically become due and payable, without protest, presentment, notice or
demand, all of which are expressly waived by the Company.
ARTICLE 9. YIELD PROTECTION
SECTION 9.1. INCREASED COST OF EURODOLLAR RATE ADVANCES.
(a) If, as a result of any change after the date of this
Agreement in (including the introduction of any new) applicable United States,
state or foreign laws or regulations or the adoption or making of any
interpretations, directives or requests thereof or thereunder by any court or
governmental authority charged with the interpretation or administration
thereof, one or more of the following events occur (herein called "Increased
Cost Changes"):
(i) the basis of taxation of payments to any
Bank of the principal of or interest on any Eurodollar Rate
Advance or any other amounts payable under this Agreement in
respect thereof (other than taxes imposed on the aggregate
net income of such Bank or of its Eurodollar Lending Office
by the jurisdiction in which the Bank has its principal
office or such Eurodollar Lending Office) is changed; or
(ii) any reserve, special deposit or similar
requirements against the assets of, deposits with or for the
account of, or credit extended by, any Bank are imposed,
modified or deemed applicable; or
(iii) any other condition affecting this Agreement
or any Eurodollar Rate Advance is imposed on any Bank or (in
the case of Eurodollar Rate Advances) the London interbank
market;
and a Bank determines that, by reason thereof, the cost to such Bank of making
or maintaining any of the Eurodollar Rate Advances is increased by an amount
reasonably determined by such Bank, or any amount receivable by such Bank
hereunder in respect of any of the Eurodollar Rate Advances is reduced by an
amount reasonably determined by such Bank (such increases in cost and
reductions in amounts receivable being herein called "Increased Costs"), then
the Company shall pay to such Bank on the next interest payment date for the
affected Eurodollar Rate Advances such additional amount or amounts (which
shall be set forth in a notice from such Bank to the Company stating the cause
and amount of such Increased Costs) as will compensate such Bank for such
Increased Costs. Each Bank will immediately notify the Company of any event of
which such Bank has knowledge that will entitle such Bank to compensation
pursuant to this Section 9.1(a) and will exercise reasonable diligence to
designate a different Eurodollar Lending Office, and/or take other measures
which will avoid the need for such compensation for Increased Costs and will
not result in material cost to such Bank, or be otherwise disadvantageous (in
such Bank's sole determination) to such Bank.
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(b) Without limiting the effect of the foregoing, the
Company shall pay (without duplication as to amounts paid under Section 9.1(a)
hereof) to any Bank on each interest payment date as to Eurodollar Rate Advances
so long as such Bank may be required to maintain reserves against "Eurocurrency
liabilities" under Regulation D of the Board of Governors of the Federal Reserve
System an additional amount (determined by such Bank and notified to the Company
through Administrative Agent) equal to the sum of the products of the following
for each Eurodollar Rate Advance for each day on which such Bank is required to
maintain such reserves during the Interest Period for such Advance for which
interest is being paid:
(i) the principal amount of such Eurodollar Rate
Advance outstanding on such day; times
(ii) the remainder of (x) a fraction the
numerator of which is LIBOR (expressed as a decimal) used to
determine the Eurodollar Rate for such Eurodollar Rate Advance
for such Interest Period as provided in this Agreement and the
denominator of which is one minus the effective rate
(expressed as a decimal) at which such reserve requirements
are imposed on such Bank on such day minus (y) such numerator;
times
(iii) 1/360.
(c) Determinations by any Bank for purposes of this
Section 9.1 of the effect of any Increased Cost Change on such Bank's costs of
making or maintaining Eurodollar Rate Advances or on amounts receivable by it in
respect of Eurodollar Rate Advances, and of the additional amounts required to
compensate such Bank in respect thereof, shall be conclusive, provided that such
determinations are made reasonably and in good faith.
(d) If the Company is required to pay additional amounts
to any Bank under paragraph (a) or (b) of this Section 9.1, the Company may (in
addition to paying such additional amounts to such Bank) at the Company's option
at any time, subject to the provisions of Section 9.3 hereof, convert all of the
Eurodollar Rate Advances of such Bank which are affected by such Increased Costs
to Base Rate Advances in accordance with this Agreement.
SECTION 9.2. CHANGE OF LAW.
Notwithstanding any other provision herein, in the event that
any change in applicable law, rule or regulation or in the interpretation or
administration thereof (including the issuance of any new law, rule, regulation
or interpretation, or any new administration thereof), of or in any jurisdiction
whatsoever, shall make it unlawful for any Bank to make or maintain a Eurodollar
Rate Advance (or to convert Base Rate Advances into Eurodollar Rate Advances),
or shall materially restrict the authority of any Bank to purchase or sell, or
to take deposits of Eurodollars, then the obligation of such Bank to make
Eurodollar Rate Advances (and the right of the Company to convert Base Rate
Advances into Eurodollar Rate Advances) shall be suspended for the duration of
such illegality or restriction and the Company shall forthwith convert all
Eurodollar Rate Advances of such Bank then outstanding to Base Rate Advances in
accordance with the terms of this Agreement.
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SECTION 9.3. FUNDING LOSSES.
The Company shall indemnify a Bank against, and reimburse such
Bank on demand for, any loss or expense incurred or sustained by such Bank, as
reasonably determined by such Bank, as a result of any payment or prepayment
(whether by reason of a voluntary prepayment by the Company or by reason of a
mandatory prepayment of the Advances by reason of an Event of Default or other
mandatory prepayment provision relating to all outstanding Advances set forth
herein) or conversion of a Eurodollar Rate Advance made by such Bank on a day
other than the last day of an Interest Period for such Advance.
SECTION 9.4. MANDATORY REPAYMENT OR CONVERSION ON CERTAIN
EVENTS.
On the last day of an Interest Period during which any Orderly
Replacement Event occurs (which relates to all Banks) and no later than four (4)
Eurodollar Business Days after any Immediate Replacement Event relating to one
or more Banks, all outstanding Eurodollar Rate Advances of such Banks shall, at
the option of the Company, be either: (a) prepaid in full by the Company,
together with any accrued and unpaid interest thereon, or (b) converted to Base
Rate Advances. Each Bank shall promptly notify the Company and Administrative
Agent of any Immediate Replacement Event and any Orderly Replacement Event known
to such Bank.
SECTION 9.5. SURVIVAL.
The obligations of the Company under Sections 9.1 through 9.3
of this Agreement shall survive the repayment of the Advances and the
cancellation of the Notes.
ARTICLE 10. THE ADMINISTRATIVE AGENT
SECTION 10.1. AUTHORIZATION AND ACTION.
Each Bank hereby appoints and authorizes the Administrative
Agent to take such action as administrative agent on its behalf and to exercise
such powers under this Agreement and the Notes as are delegated to it as
Administrative Agent by the terms hereof and thereof, together with such powers
as are reasonably incidental thereto, and the Administrative Agent hereby
accepts such authorization and appointment. As to any matters not expressly
provided for by this Agreement and the Notes or provided for with specific
reference to this Section 10.1 (including, without limitation, enforcement or
collection of the Notes), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from action) upon the instructions of the Majority Banks, and such instructions
shall be binding upon all Banks and all holders of the Notes; provided, however,
that the Administrative Agent shall not be required to take any action which
exposes the Administrative Agent to liability or which is contrary to this
Agreement or the Notes or applicable law. As to any provisions of this Agreement
under which action may be taken or approval given by the Majority Banks, the
action taken or approval given by the Majority Banks shall be binding upon all
Banks to the same extent and with the same effect as if each Bank had joined
therein. The Administrative Agent shall be entitled to rely upon any note,
notice, consent, certificate, affidavit, letter, telegram, teletype message
facsimile
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transmission, statement, order or other document believed by it to be genuine
and correct and to have been signed or sent by the proper person or persons and,
in respect of legal matters, upon the opinion of counsel selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment or transfer thereof shall have been filed with the
Administrative Agent. Any request, authority or consent of any Person who at the
time of making such request or giving such authority or consent is the holder of
any Note shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any note or notes issued in exchange therefor.
SECTION 10.2. ADMINISTRATIVE AGENT'S RELIANCE, ETC.
Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable to any Bank for any action taken
or omitted to be taken by it or by such directors, officers, agents or employees
under or in connection with this Agreement or the Notes, except for its or their
own gross negligence or willful misconduct. Without limitation of the generality
of the foregoing, the Administrative Agent: (i) may consult with legal counsel,
independent public accountants and other experts selected by it and shall not be
liable to any Bank for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such experts; (ii) makes no warranty or
representation to any Bank and shall not be responsible to any Bank for any
statements, warranties or representations (whether oral or written) made in or
in connection with this Agreement or the Notes; (iii) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement or the Notes on the part of the
Company or to inspect the property (including the books and records) of the
Company or any of its Subsidiaries; (iv) shall not be responsible to any Bank
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or the Notes, or any other instrument or
document furnished pursuant thereto; (v) shall incur no liability under or in
respect to this Agreement or the Notes by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telegram, facsimile
transmission, cable or telex) believed by it to be genuine and signed or sent by
the proper party or parties; and (vi) may deem and treat the Bank which makes an
Advance as the holder of the indebtedness resulting therefrom for all purposes
hereof until the Administrative Agent receives and accepts an Assignment and
Assumption Agreement entered into by such Bank, as assignor, and an eligible
assignee as provided in Section 11.6 hereof.
SECTION 10.3. ADMINISTRATIVE AGENT AND AFFILIATES.
With respect to its Commitment, the Advances made by it and
the Notes issued to it, the Administrative Agent shall have the same rights and
powers under this Agreement as any other Bank and may exercise the same rights
and powers under this Agreement as any other Bank and may exercise the same as
though it were not the Administrative Agent; and the term "Bank" or "Banks"
shall, unless otherwise expressly indicated, include the Administrative Agent in
its individual capacity. Unrelated to its role as Administrative Agent as set
forth herein, the Administrative Agent and its affiliates may accept deposits
from, lend money to, act as trustee under indentures of, and generally engage in
any kind of business with, the Company, any of its
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Subsidiaries and any Person who may do business with or own securities of the
Company, all as if it were not the Administrative Agent and without any duty to
account therefor to the Banks.
SECTION 10.4. REPRESENTATIONS OF THE BANKS.
Each Bank acknowledges that it has, independently and without
reliance upon the Administrative Agent, or any affiliate or subsidiary of the
Administrative Agent, or any other Bank and based on the financial statements
referred to in Section 5.2 hereof and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement; and that each Bank has actively engaged in the negotiation of
all of the terms of this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under this Agreement or the Notes. The Administrative Agent has no duty
or responsibility, either initially or on a continuing basis, to provide any
Bank with any credit or other information with respect to the Company whether
coming into its possession as of the date of this Agreement or at any time
thereafter, or to notify any Bank of any Event of Default except as provided in
Section 10.5 hereof. This Agreement and all instruments or documents delivered
in connection with this Agreement have been reviewed and approved by each Bank
and the Banks have not relied on the Administrative Agent as to any legal or
factual matter in connection therewith or in connection with the transactions
contemplated thereunder.
SECTION 10.5. EVENTS OF DEFAULT.
In the event of the occurrence of any Default or Event of
Default, any Bank knowing of such event may (but shall have no duty to), or the
Company pursuant to Section 6.7 hereof shall, give the Administrative Agent
written notice specifying such Event of Default or other event and expressly
stating that such notice is a "notice of default". The Administrative Agent
shall not be deemed to have knowledge of such events unless the Administrative
Agent has received such notice, or unless the Event of Default consists of a
failure of payment of principal or interest on any of the Notes. In the event
that the Administrative Agent receives such a notice of the occurrence of an
Event of Default, the Administrative Agent shall give written notice thereof to
the Banks. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed in writing by the
Majority Banks; provided, however, that, unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Event of Default as it shall deem advisable and in the best
interest of the Banks.
SECTION 10.6. RIGHT TO INDEMNITY.
Except for action expressly required of the Administrative
Agent hereunder, the Administrative Agent shall be fully justified in failing or
refusing to take any action hereunder unless it shall first be indemnified to
its satisfaction by the Banks against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
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SECTION 10.7. INDEMNIFICATION.
The Banks hereby agree to indemnify the Administrative Agent
and all affiliates, directors, officers, employees, advisors and representatives
thereof (to the extent not reimbursed by the Company), if no Advances are at the
time outstanding ratably according to their respective Commitments, or, if
Advances are at the time outstanding, ratably according to their respective
Advances as most recently in effect prior to the date indemnification is sought,
from and against any and all costs, losses, liabilities, claims, damages or
expenses which may be incurred by or asserted or awarded against the
Administrative Agent in any way relating to or arising out of this Agreement
and/or the Notes or any action taken or omitted by the Administrative Agent
under this Agreement and/or the Notes; provided, however, that no Bank shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Bank agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Administrative Agent in connection with
the administration, or enforcement of, or the preservation of any rights under,
this Agreement and/or the Notes, to the extent that the Administrative Agent is
not reimbursed for such expenses by the Company.
SECTION 10.8. SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign at any time by giving
written notice thereof to the Banks and the Company and may be removed at any
time with or without cause by the Majority Banks. Upon any such resignation or
removal, the Company shall have the right to appoint a successor Administrative
Agent, subject to confirmation by the Majority Banks. If no successor
Administrative Agent shall have accepted such appointment within 30 days after
the retiring Administrative Agent's giving of notice of resignation or the
Majority Banks' removal of the Administrative Agent the Administrative Agent
may, on behalf of the Banks, appoint a successor Administrative Agent who shall
be willing to accept such appointment. In any event such successor
Administrative Agent shall be a commercial bank organized under the laws of the
United States of America or of any State thereof and shall have a combined
capital and surplus of at least $1,000,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or
removed Administrative Agent, and the retiring or removed Administrative Agent
shall be discharged from its duties and obligations as agent under this
Agreement. After any Administrative Agent's resignation or removal hereunder as
Administrative Agent the provisions of this Article 10 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
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ARTICLE 11. MISCELLANEOUS
SECTION 11.1. RIGHTS AND REMEDIES.
No delay or failure of the Banks or the Administrative Agent
or any one of them or of the Company in exercising any rights, powers or
privileges hereunder shall affect such right, power or privilege, nor shall any
single or partial exercise thereof preclude any further exercise thereof, or the
exercise of any other right, power or privilege. The rights and remedies of the
Banks and the Administrative Agent or any one of them and of the Company under
this Agreement are cumulative and not exclusive of any rights or remedies which
they would otherwise have. Failure on the part of any Bank, the Administrative
Agent or the Company to exercise any right, power or privilege given it
hereunder shall not be the breach of any obligation of the Bank or the Company
to any other party to this Agreement or to any other Person.
SECTION 11.2. NOTICES.
Except as otherwise expressly provided for herein, notices,
which may be given or are required to be given hereunder, shall be in writing
and may be mailed, postage prepaid, addressed as follows or sent by telex or
facsimile:
(a) If to the Company, both to:
Delta Air Lines, Inc.
Attention: David W. Stowe
Director - Treasury
Dep't 857
1030 Delta Boulevard
Atlanta, Georgia 30320
Facsimile: (404) 715-3110
And to:
Delta Air Lines, Inc.
Attention: Paul A. Jacobson
Manager - Capital Markets
Dep't 856
1030 Delta Boulevard
Atlanta, Georgia 30320
Facsimile: (404) 715-4862
(b) If to Administrative Agent:
Citicorp North America, Inc.
Attention: Elizabeth Wier
2 Penns Way, Suite 200
New Castle, Delaware 19720
Facsimile: (302) 894-6120
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With a copy to
Citicorp North America, Inc.
Attention: Kirk Lakeman
400 Perimeter Center Terrace, Suite 600
Atlanta, Georgia 30346
Facsimile: (770) 668-8137
(c) If to any Bank other than Administrative Agent at
that address, telex number or facsimile number designated in writing to the
Company and the Administrative Agent from time to time.
A party may specify a different address or facsimile number by furnishing such
change in writing to all other parties hereto. Additionally, notice may, in lieu
of being given by mail or facsimile, be delivered personally to any officer of
any party to whose attention it could have been addressed.
SECTION 11.3. EXPENSES, INDEMNIFICATION, ETC.
(a) The Company shall pay all reasonable costs, expenses,
taxes and fees (i) incurred by the Administrative Agent in connection with the
preparation, execution and delivery of this Agreement, the Notes and all other
documents incident hereto or thereto (collectively, the "Loan Documents")
including, without limitation, the reasonable costs and professional fees of
Milbank, Tweed, Hadley & McCloy LLP, New York, New York, whether or not any
transaction contemplated hereby shall be consummated, and any and all stamp,
intangible or other taxes that may be payable or determined in the future to be
payable in connection therewith; (ii) incurred by the Administrative Agent in
connection with the administration of the Advances and the Loan Documents in
accordance with the provisions thereof and the preparation, execution and
delivery of any waiver, amendment or consent by the Banks or the Administrative
Agent relating to the Loan Documents including, without limitation, costs and
professional fees of counsel for the Administrative Agent; and (iii) actually
incurred by the Administrative Agent or any of the Banks in enforcing the Loan
Documents including, without limitation, reasonable attorneys' fees of counsel
for the Administrative Agent or the Banks.
(b) The Company shall indemnify the Administrative Agent
and each Bank and hold the Administrative Agent and each Bank (and all
affiliates, directors, officers, employees, advisors and agents of any of the
foregoing (the Administrative Agent, the Banks and such directors, officers,
employees and agents each referred to as an "Indemnified Party")) harmless
against, any and all costs, losses, liabilities, claims, damages or expenses
that may be incurred by or asserted or awarded against an Indemnified Party,
whether jointly or severally, and whether or not such Indemnified Party is
designated a party thereto, arising out of or by reason to or relating directly
or indirectly to, (i) any investigation, litigation or other proceeding, pending
or threatened, regarding any actions or failure to act by the Company involving
this Agreement or any transaction contemplated hereby, (ii) any actual or
proposed use by the Company or any of its Subsidiaries of the proceeds from any
borrowing hereunder, or (iii) the Administrative Agent's, any Bank's or the
Company's entering into and complying with this Agreement or in issuing or
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delivering the Notes and including, without limitation, the reasonable fees and
disbursements of such Indemnified Party's separate counsel incurred in
connection with any such investigation, litigation or other proceeding (which
shall be advanced by the Company on request notwithstanding any claim or
assertion that the Indemnified Party is not entitled to indemnification
hereunder upon receipt of an undertaking to reimburse the Company if it is
actually and finally determined by a court of competent jurisdiction that the
party is not so entitled). However, the indemnity of the Company set forth
herein shall not cover the costs, losses, liabilities, claims, damages or
expenses (x) incurred by an Indemnified Party arising out of the bad faith or
willful misconduct of such Indemnified Party (as actually and finally determined
by a court of competent jurisdiction) or (y) incurred by the Administrative
Agent in connection with a suit, claim or cause of action brought against the
Administrative Agent by a Bank pursuant to which such Bank alleges that the
Administrative Agent has failed to perform the ministerial duties of the
Administrative Agent as expressly set forth herein (such as administering the
funding and collection of Advances, determining interest rates and the like).
(c) The Administrative Agent and each Bank agree that in
the event that any investigation, litigation, suit, action or proceeding is
asserted or threatened in writing or instituted against it or any other
Indemnified Party for which the Administrative Agent or any Bank may desire
indemnity or defense hereunder, the Administrative Agent or such Bank shall
promptly notify the Company thereof in writing and agree, to the extent
appropriate, to consult with the Company with a view to minimizing the cost to
the Company of its obligations under this Section 11.3.
(d) No action taken by legal counsel chosen by an
Indemnified Party in defending against any such investigation litigation, suit,
action or proceeding or requested remedial, removal or response action shall
vitiate or in any way impair the obligations and duties of the Company hereunder
to indemnify and hold harmless each Indemnified Party; provided, however, that
if the Company is required to indemnify any Indemnified Party pursuant hereto,
such Indemnified Party shall not settle or compromise any such investigation
litigation, suit, action or proceeding without the prior written consent of the
Company (which consent shall not be unreasonably withheld or delayed) so long as
the Company has provided evidence reasonably satisfactory to such Indemnified
Party that the Equity of the Company and its Subsidiaries on a consolidated
basis is not less than zero.
(e) The obligations of the Company under this Section
11.3 shall survive transfer, payment or satisfaction of any Note and any
amendment, supplementation, modification or termination of this Agreement.
SECTION 11.4. AMENDMENTS TO THIS AGREEMENT AND THE NOTES.
Any provisions of this Agreement and the Notes may be amended,
terminated waived or otherwise modified in writing by the Company and the
Majority Banks, and any such amendment, termination, waiver or other
modification shall be binding upon all of the Banks to the same extent and with
the same effect as if each Bank had joined therein, provided, however, that,
notwithstanding the foregoing: (a) any provisions of this Agreement and the
Notes with respect to any (i) change in the amount of, or extension of the
expressed maturity date of, the
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whole or any principal or interest payable under any Note, (ii) reduction in the
rate of interest payable under any Note (other than any change in the rate of
interest pursuant to the next to last paragraph of the definition of Applicable
Margin), (iii) increase in the amount of any Commitment (except as permitted in
Sections 3.14 and 11.6), (iv) reduction in the amount or extension of the due
date of any fees payable hereunder, (v) extension of the due date of any
principal of, or interest on, any Advance or (vi) change in this Section 11.4,
may be amended or otherwise modified only in writing signed by the Company and
each Bank directly affected thereby; and (b) no provisions of Article 10 shall
be amended, modified, or waived without the consent of the Administrative Agent.
Neither the percentage set forth in the definition of "Majority Banks" nor
Section 11.5 shall be amended or modified without the unanimous written consent
of the Banks.
Notwithstanding the foregoing paragraph, in the event that the
Existing Credit Agreement shall at any time include any negative covenant or
event of default (each, a "Specified Restrictive Provision") that is not
contained in, or is more restrictive than those contained in, this Agreement
then, effective on the date such Specified Restrictive Provision is so included,
this Agreement shall automatically be deemed to have been amended to include
herein such Specified Restrictive Provision. It is understood that any
subsequent waiver, amendment or other modification to any Specified Restrictive
Provision contained in the Existing Credit Agreement that has the effect of
making such provision less restrictive shall not, unless otherwise agreed by the
Majority Banks, affect the terms of such provision as incorporated herein.
SECTION 11.5. AGREEMENT AS TO RIGHT OF SET-OFF, SHARING OF
LOSSES.
(a) Upon the occurrence and during the continuance of any
Event of Default, each Bank and each of its affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final, matured or unmatured, in whatever currency) at any time
held and other indebtedness at any time owing by such Bank or such affiliate to
or for the credit or the account of the Company against any and all of the
obligations of the Company now or hereafter existing under this Agreement and
the Notes, whether or not such Bank shall have made any demand under this
Agreement. Each Bank agrees promptly to notify the Company after any such
set-off and application made by such Bank or such affiliate; provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Bank and its affiliates under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) which such Bank or such affiliate may have.
(b) So long as any Advance is outstanding, each Bank
agrees that, if it has payment made to it on any Advance, whether by set-off or
otherwise, including, but not limited to, any payment received by such Bank
under any applicable bankruptcy, insolvency or similar laws, in a greater
proportion than payments made on Advances held by any other Bank, the Bank so
receiving such greater proportionate payment agrees to purchase a portion of the
Advances held by the other Banks, so that after such purchase each Bank will
hold an unpaid balance on its Advance bearing the same proportion to the then
outstanding aggregate principal amount of the Advances as such Bank's Commitment
bears to the Banks' aggregate Commitments; provided that if any amount so
received by any Bank in payment of the Advance held by it shall be, as a result
of the reversal of the exercise of any such right (whether by court order or
voluntary action
42
47
on the part of such Bank), returned to the Company or the Subsidiary or paid as
directed by such court order by such Bank, then each other Bank which shall have
theretofore received its share of any such payment pursuant to this Section 11.5
shall, upon demand, promptly repay, without interest, the amount of such share
to such Bank, or, if the Bank exercising such right shall not have made the
purchases provided for in this Section 11.5 prior to such reversal, the other
Banks shall have no further rights under this Section 11.5 in respect to such
amount. Except as provided in this Section and in Sections 10.6 and 10.7, no
Bank shall be responsible to any other Bank for losses or claims which such Bank
may incur in connection with the transactions contemplated by this Agreement.
The Company agrees that any Bank so purchasing a participation from another Bank
pursuant to this Section 11.5 may exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Bank were the direct creditor of the Company in the amount of such
participation.
SECTION 11.6. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the Company and the Banks
and their respective successors and assigns, and shall inure to the benefit of
the Company and the Banks and their respective successors and assigns. The
Company may not assign its rights or obligations hereunder, except as permitted
by Section 7.3 hereof. Other than by virtue of operation of law, no Bank shall
assign any portion of its Commitment or Advances hereunder unless (a) except in
the case of any assignment to another Bank or to any affiliate of any Bank, the
portion of the Bank's Commitment or Advances to be assigned is equal to or
greater than $25,000,000 (or such lesser amount as the Company may approve in
its sole discretion), unless the assigning Bank is assigning the entire amount
of its Commitment and Advances; (b) except in the case of any assignment to
another Bank or to any affiliate of any Bank, the assigning Bank has received
the prior written approval of the Company and the Administrative Agent to the
proposed assignment (such approval in each case not to be unreasonably
withheld); (c) the Administrative Agent has been paid an assignment fee of
$3,000 by the assigning Bank; and (d) the bank which has received the assignment
of the Commitment or Advances, the assigning Bank, the Company and the
Administrative Agent shall have executed an Assignment and Assumption Agreement.
Upon compliance with the provisions set forth above, such financial institution
shall thereupon and thereafter be deemed to be a Bank for all purposes
hereunder. Other than as provided in the next paragraph, there shall be no sale
by any Bank of any participation in its Commitment or Advances; provided,
however, any Bank may pledge its Advances and/or Notes hereunder to a Federal
Reserve Bank in support of borrowings made by such Bank from such Federal
Reserve Bank.
Any Bank may, without the consent of the Company, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
in any Advance owing to such Bank, any Commitment of such Bank or any other
interest of such Bank hereunder and under the Notes. In the event of any such
sale by a Bank of a participating interest to a Participant, such Bank's
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Advance for all purposes
under this Agreement and the Notes, and the Company and the Administrative Agent
shall continue to deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement and the Notes. In no
event shall any
43
48
Participant under any such participation have any right to approve any amendment
or waiver of any provision of this Agreement or any Note, or any consent to any
departure by the Company therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Advances or
any fees payable hereunder, or postpone the date of the final maturity of the
Advances, in each case to the extent subject to such participation. The Company
agrees that if amounts outstanding under this Agreement and the Notes are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement and
the Notes to the same extent as if the amount of its participating interest were
owing directly to it as a Bank under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Banks the proceeds thereof as provided in Section 11.5
as fully as if it were a Bank hereunder. The Company also agrees that each
Participant shall be entitled to the benefits of Sections 3.15, 9.1, 9.2 and 9.3
with respect to its participation in the Commitments and the Advances
outstanding from time to time as if it was a Bank; provided that no Participant
shall be entitled to receive any greater amount pursuant to any such Section
than the transferor Bank would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Bank to such
Participant had no such transfer occurred.
SECTION 11.7. HOLIDAYS.
When any payment hereunder falls due on a day that is not a
Business Day, such payment shall be made as herein provided on the next
succeeding Business Day. Interest shall continue to accrue on the principal to
be paid until it is paid.
SECTION 11.8. LAW GOVERNING.
This Agreement shall be construed and performance thereof
shall be determined according to the laws of the State of New York.
SECTION 11.9. DISCLOSURE TO OTHER PERSONS.
The Company acknowledges that any Bank may deliver copies of
any financial statements and other documents delivered to such Bank, and
disclose any other information disclosed to such Bank, by or on behalf of the
Company or any Subsidiary in connection with or pursuant to this Agreement to
(i) such of the Bank's directors, officers, employees, agents and professional
consultants as may require such information in the performance of their
respective duties, (ii) any Person to which such Bank offers to assign any
Commitment or Advance or any part thereof if (a) such disclosure has been
previously approved by the Company, or (b) such disclosure is not of information
previously designated by the Company as "privileged" or "confidential", (iii)
any federal or state regulatory authority having jurisdiction over such Bank, or
(iv) any other Person to which such delivery or disclosure may be necessary or
appropriate (a) in compliance with any law, rule, regulation or order applicable
to such Bank, (b) in response to any subpoena or other legal process or (c) in
connection with any litigation to which such Bank is a party; provided, however,
that such Bank, to the extent legally permitted to do so, will use its best
44
49
efforts to notify the Company prior to any disclosure of information
contemplated by this subparagraph (iv) and will use its best efforts to give the
Company the opportunity to object to any such disclosure; provided, further,
that the foregoing proviso shall not require such Bank to withhold such
information where such withholding would subject such Bank to civil or criminal
liabilities or penalties, as determined by such Bank in its discretion.
SECTION 11.10. EXECUTION AND EFFECTIVE DATE.
This Agreement may be executed in any number of counterparts,
and any party hereto may execute the said Agreement by signing any such
counterpart. The Company shall deliver one such executed counterpart to
Administrative Agent and each Bank shall deliver one such executed counterpart
to the Administrative Agent for further delivery to the Company. This Agreement
shall be effective as of the Effective Date.
SECTION 11.11. REPRESENTATION OF BANKS.
Each Bank represents for itself only that it is acquiring the
Notes to be acquired by it hereunder for its own account in the ordinary course
of extending credit as a banking institution and not with a view to the
distribution or resale thereof, subject, nevertheless, to any requirement of law
that the disposition of the property of a Bank shall at all times be within its
control.
SECTION 11.12. SEVERABILITY.
Any provision of this Agreement or of the Notes which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 11.13. ENTIRE AGREEMENT.
This Agreement and the Notes express the entire understanding
of the parties with respect to the transactions contemplated hereby. Neither
this Agreement, the Notes nor any term hereof or thereof may be changed, waived,
discharged or terminated orally or in writing, except as provided in Section
11.4 hereof.
SECTION 11.14. JURISDICTION.
The Company hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the Notes, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States for the Southern District of New York, and appellate
courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or
45
50
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Company at its address set forth in Section 11.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto; and
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction.
SECTION 11.15. WAIVERS OF JURY TRIAL.
THE COMPANY, THE ADMINISTRATIVE AGENT AND THE BANKS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY NOTE AND FOR ANY COUNTERCLAIM
THEREIN.
[Signatures on Following Pages]
46
51
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed.
THE COMPANY:
DELTA AIR LINES, INC.
By:
--------------------------------
Title:
-----------------------------
By:
--------------------------------
Title:
-----------------------------
THE ADMINISTRATIVE AGENT:
CITICORP NORTH AMERICA, INC.,
as Administrative Agent
By:
--------------------------------
Title:
-----------------------------
CITIBANK, N.A.,
By:
--------------------------------
Title:
-----------------------------
47
52
COMMERZBANK AG,
NEW YORK AND GRAND CAYMAN
BRANCHES
By:
--------------------------------
Title:
-----------------------------
By:
--------------------------------
Title:
-----------------------------
48
53
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By:
--------------------------------
Title:
-----------------------------
49
54
SUNTRUST BANK
By:
--------------------------------
Title:
-----------------------------
50
55
THE CHASE MANHATTAN BANK
By:
--------------------------------
Title:
-----------------------------
51
56
CREDIT LYONNAIS NEW YORK
BRANCH
By:
--------------------------------
Title:
-----------------------------
52
57
THE BANK OF NEW YORK
By:
--------------------------------
Title:
-----------------------------
53
58
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS
BRANCH
By:
--------------------------------
Title:
-----------------------------
By:
--------------------------------
Title:
-----------------------------
54
59
KBC BANK N.V.
By:
--------------------------------
Title:
-----------------------------
By:
--------------------------------
Title:
-----------------------------
55
60
THE MITSUBISHI TRUST AND
BANKING CORPORATION,
NEW YORK BRANCH
By:
--------------------------------
Title:
-----------------------------
56
61
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
--------------------------------
Title:
-----------------------------
57
62
EXHIBIT A
BANK COMMITMENT
---- --------------
Citibank, N.A. $ 165,000,000
Commerzbank AG, New York and Grand Cayman Branches 145,000,000
The Industrial Bank of Japan, Limited 145,000,000
SunTrust Bank 145,000,000
The Chase Manhattan Bank 100,000,000
Credit Lyonnais New York Branch 75,000,000
The Bank of New York 50,000,000
Bayerische Landesbank Girozentrale, Cayman Islands Branch 50,000,000
KBC Bank N.V. 50,000,000
The Mitsubishi Trust and Banking Corporation, New York Branch 50,000,000
Bank of Tokyo-Mitsubishi Trust Company 25,000,000
--------------
Total Commitments of the Banks $1,000,000,000
1
63
EXHIBIT B
FORM OF NOTE
$
---------------
-----------------, ----
FOR VALUE RECEIVED, DELTA AIR LINES, INC., a Delaware
corporation (the "Maker"), promises to pay to the order of
________________________________ (together with any successor and assign thereof
or any subsequent holder hereof referred to herein as the "Holder") the lesser
of (a) ___________________ Dollars in lawful money of the United States or (b)
the aggregate unpaid principal amount of all Advances which are still
outstanding and which were made to the Maker by the Holder pursuant to that
certain Credit Agreement dated as of ___________, 2001 (as the same may be
amended, modified or supplemented from time to time, the "Credit Agreement",
terms used herein and not defined herein have their respective defined meanings
as set forth in the Credit Agreement) by and among the Maker, the Banks set
forth therein, and Citicorp North America, Inc., as Administrative Agent, at
such place as is specified in the Credit Agreement. The Company shall repay the
principal amount of this Note on the Termination Date. The outstanding principal
amount hereof shall bear interest at the rates and shall be payable at the times
set forth in the Credit Agreement.
Any payment of principal or interest which is not paid when
due, as herein provided, shall bear interest (to the extent permitted by law) at
such interest rates, and payable at such times, as are specified in the Credit
Agreement.
This Note is one of the Notes issued pursuant to, and is
entitled to the benefits of, the Credit Agreement. To the extent provided in the
Credit Agreement, this Note is subject to voluntary prepayment, in whole or in
part, without premium or penalty.
Upon the occurrence of an Event of Default the aggregate
unpaid principal amount of all Advances evidenced hereby which are still
outstanding and accrued interest thereon may become due and payable in the
manner and with the effect provided in the Credit Agreement.
Time is of the essence of this Note, and in case this Note is
not paid when due, and is subsequently collected by law or through an attorney
at law, or under advice therefrom, the Maker agrees to pay all costs of
collection incurred by the Holder including, without limitation, the reasonable
fees and disbursements of counsel to the Holder.
64
The undersigned and all endorsers or other parties to this
Note hereby waive presentment, demand for payment, protest and notice of
nonpayment.
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this Note as of the date first written above.
DELTA AIR LINES, INC.
By:
----------------------
Title:
-------------------
2
65
[Reverse of Note]
Advance Payment
------- -------
Date Advance Amount Principal Interest
- ---- -------------- --------- --------
3
66
EXHIBIT C-1
FORM OF NOTICE AND AGREEMENT REGARDING ADDITION OF BANK
[Date]
Citicorp North America, Inc., as Administrative Agent
2 Penns Way, Suite 200
New Castle, Delaware 19720
Attention: Elizabeth Wier
Delta Air Lines, Inc.
1030 Delta Boulevard
Atlanta, Georgia 30320
Attention: David W. Stowe, Director - Treasury
Dep't 857
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of
____________, 2001 (the "Credit Agreement") by and among Delta Air Lines, Inc.
(the "Company"), the Banks party thereto, and Citicorp North America, Inc., as
Administrative Agent. Terms used herein and not defined herein have their
respective defined meanings as set forth in the Credit Agreement.
1. Pursuant to Section 3.14.1 of the Credit Agreement,
the undersigned hereby requests that it become a Bank under the Credit
Agreement. The proposed [Commitment] [Advances] of the undersigned as a Bank
under the Credit Agreement would equal $___________. The undersigned proposes
that the undersigned shall become a Bank under the Credit Agreement on the later
of (a) the date the Administrative Agent and the Company consent thereto and (b)
______________, ______ (such later date, the "Effective Date").
2. Upon the Effective Date, the undersigned hereby
assumes all of the obligations of a Bank having [a Commitment] [Advances] of
$____________ under the Credit Agreement as if the undersigned were an original
Bank and signatory under the Credit Agreement including, but not limited to, the
obligation of a Bank to make advances to the Company thereunder (if applicable)
and to indemnify the Administrative Agent as provided therein. In this
connection, the undersigned hereby represents that it has received and reviewed
a copy of the Credit Agreement and hereby ratifies and approves all of the terms
and conditions of the Credit Agreement and the other documents executed and
delivered in connection therewith.
3. For purposes of delivering any notice to the
undersigned as a Bank under the Credit Agreement, the following sets forth the
address of the undersigned for such purpose:
67
-----------------------
-----------------------
-----------------------
Telecopy No.
-----------
Attention:
-------------
4. The undersigned acknowledges that it has,
independently and without reliance upon the Administrative Agent, or on any
affiliate or subsidiary thereof, or any other Bank and based on the financial
statements supplied by the Company and such other documents and information as
it has deemed appropriate, made its own credit analysis and decision to become a
Bank under the Credit Agreement. The undersigned also acknowledges that it wills
independently and without reliance upon the Administrative Agent or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement or its respective Note. The Administrative
Agent shall have no duty or responsibility, either initially or on a continuing
basis, to provide the undersigned with any credit or other information with
respect to the Company or to notify the undersigned of any Event of Default
except as provided in Section 10.5 of the Credit Agreement. The undersigned has
not relied on the Administrative Agent as to any legal or factual matter in
connection therewith or in connection with the transactions contemplated
thereunder.
5. This letter agreement shall not be binding against
the undersigned unless and until the Company and the Administrative Agent have
executed their consent to the foregoing at the space provided below.
6. THIS LETTER AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. This letter agreement may be executed in any number
of counterparts each of which when taken together, shall constitute one and the
same agreement.
Very truly yours,
[FINANCIAL INSTITUTION]
By:
--------------------------------
Title:
--------------------------
2
68
The Company hereby agrees that, on the Effective Date, ________________
("__________") shall be a Bank under the Credit Agreement having [a Commitment]
[Advances] equal to $_________ pursuant to the terms and conditions set forth
above. The Company agrees that _____________ shall have all of the rights and
remedies of a Bank under the Credit Agreement as if _____________ were an
original Bank and signatory under the Credit Agreement including, but not
limited to, the right of a Bank to receive payments of principal and interest
with respect to the Advances made by the Banks and, if applicable, to receive
the facility fees payable to the Banks as provided in the Credit Agreement.
Further, __________shall be entitled to the indemnification provisions from the
Company in favor of the Banks as provided in the Credit Agreement. The Company
further agrees, on the Effective Date, to execute in favor of _________________
a promissory note in substantially the form of Exhibit B to the Credit Agreement
in the face amount of ___________'s [Commitment] [Advances].
DELTA AIR LINES, INC.
By:
--------------------------------
Title:
--------------------------
The Administrative Agent hereby consents to __________________
becoming a Bank under the Credit Agreement pursuant to the foregoing terms and
conditions.
CITICORP NORTH AMERICA, INC., as
Administrative Agent
By:
--------------------------------
Title:
--------------------------
3
69
EXHIBIT C-2
FORM OF AGREEMENT OF EXISTING BANK
TO REPLACE REPLACED BANK
Citicorp North America, Inc., as Administrative Agent
2 Penns Way, Suite 200
New Castle, Delaware 19720
Attention: Elizabeth Wier
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of
____________, 2001 (the "Credit Agreement") by and among Delta Air Lines, Inc.
(the "Company"), the Banks party thereto, and Citicorp North America, Inc., as
Administrative Agent. Terms used herein and not defined herein have their
respective defined meanings as set forth in the Credit Agreement.
Pursuant to Section 3.14.1 of the Credit Agreement, the
undersigned Bank (the "Existing Bank") hereby agrees to assume [$____________]
of the [Commitment] [Advances] of _________ (the "Replaced Bank") under the
Credit Agreement. Accordingly, the [Commitment] [Advances] of the Existing Bank
shall be increased from $_________to $______________. Except for the increase in
the [Commitment] [Advances] contemplated hereby, the Existing Bank shall
continue to have all of the rights, remedies, duties and obligations of a Bank
under the Credit Agreement.
Very truly yours,
[EXISTING BANK]
By:
--------------------------------
Title:
--------------------------
The Administrative Agent hereby consents to the
above-described increase in the Commitment of [Insert Bank] under the Credit
Agreement.
CITICORP NORTH AMERICA, INC., as
Administrative Agent
By:
--------------------------------
Title:
--------------------------
70
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of
___________________, by and among ______________ (the "Assignor"), _____________
(the "Assignee") DELTA AIR LINES, INC. (the "Company") and CITICORP NORTH
AMERICA, INC., as Administrative Agent.
WHEREAS, the Assignor is a Bank under that certain Credit
Agreement dated as of ____________, 2001 (the "Credit Agreement", terms used
herein and not defined herein have their respective defined meanings as set
forth in the Credit Agreement) by and among the Company, the Banks named
therein, and the Administrative Agent;
WHEREAS, the Assignor desires to assign to the Assignee [(a)]
[all] [a portion] of the Advances made by the Assignor to the Company under the
Credit Agreement, [and (b) [all] [a portion] of the Assignor's Commitment under
the Credit Agreement, all on the terms and conditions set forth herein];
WHEREAS, the Company and the Administrative Agent consent to
such assignment on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties hereto,
the parties hereto hereby agree as follows:
1. Subject to the terms and conditions of this
Agreement, the Assignor hereby irrevocably transfers and assigns to the
Assignee, without recourse, [all of the Assignor's right title and interest in
and to] [an undivided ________ percent interest in] [all Advances made by the
Assignor to the Company under the Credit Agreement] [a principal amount of
Advances made by the Assignor to the Company under the Credit Agreement equal to
$__________] (such Advances herein referred to as the "Assigned Advances")
together with all rights of the Assignor to receive all payments of principal
and interest from the Company with respect to such Assigned Advances and all
rights of collection and enforcement the Assignor may have against the Company
with respect to such Assigned Advances. [Further, but subject to the terms and
conditions set forth herein, the Assignor hereby irrevocably transfers and
assigns to the Assignee [all of the Assignor's] [$________ of the Assignor's]
Commitment under the Credit Agreement (the "Assigned Commitment").] Such
assignment shall include all voting rights of the Assignor associated with such
amount of [Assigned Advances] [Assigned Commitment][, all rights to receive all
facility fees with respect to such Assigned Commitment] and other rights of the
Assignor under the Credit Agreement with respect to such amount of [Assigned
Advances] [Assigned Commitment], all as if the Assignee were an original Bank
and signatory under the Credit Agreement having [a Commitment] [Advances] equal
to the Assigned [Commitment] [Advances]. The Assignee, subject to the terms and
conditions hereof hereby assumes all obligations of the Assignor as if the
Assignee were an original Bank and signatory under the Credit Agreement
including, but not limited to, the obligation of the Assignor to make advances
71
to the Company with respect to the Assigned Commitment (if applicable) and to
indemnify the Administrative Agent as provided therein. The Assignor shall have
no further duties or obligations with respect to, and shall have no further
interest in, the Assigned [Commitment] [Advances].
2. The Assignor hereby represents and warrants to the
Assignee that: [(a) the Assignor is a Bank under the Credit Agreement having a
Commitment under the Credit Agreement immediately prior to the effectiveness of
this Agreement equal to $___________ and the Assignor is not in default of its
obligations under the Credit Agreement and (b)] immediately prior to the
effectiveness of this Agreement, the Assignor held $__________ in principal
amount of Advances.
3. The Assigned Advances shall be without recourse to
the Assignor. The Assignee acknowledges and agrees that, except as provided in
paragraph 2 above, the Assignor is making no representations or warranties with
respect to, and the Assignee hereby releases and discharges the Assignor for any
responsibility or liability for: (i) the present or future solvency or financial
condition of the Company, (ii) any representations, warranties, statements or
information made or furnished by the Company in connection with the Credit
Agreement or otherwise, (iii) the validity, efficacy, sufficiency, or
enforceability of the Credit Agreement or any document or instrument executed in
connection therewith, or the collectibility of the Assigned Advances, (iv) the
perfection, priority or validity of any lien, security interest or pledge with
respect to any collateral at any time securing the obligations of the Company
under the Credit Agreement or the Assigned Advances under the Notes or the
Credit Agreement and (v) the performance or failure to perform by the Company of
any obligation under the Credit Agreement or any document or instrument executed
in connection therewith.
Further, the Assignee acknowledges that it has, independently
and without reliance upon the Administrative Agent, or on any affiliate or
subsidiary thereof, the Assignor or any other Bank and based on the financial
statements supplied by the Company and such other documents and information as
it has deemed appropriate, made its own credit analysis and decision to become a
Bank under the Credit Agreement. The undersigned also acknowledges that it will,
independently and without reliance upon the Administrative Agent, the Assignor
or any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement or its respective Note(s). The
Administrative Agent shall have no duty or responsibility, either initially or
on a continuing basis, to provide the Assignee with any credit or other
information with respect to the Company or to notify the Assignee of any Event
of Default except as provided in Section 10.5 of the Credit Agreement. The
Assignee has not relied on the Administrative Agent, the Assignor or any other
Bank as to any legal or factual matter in connection therewith or in connection
with the transactions contemplated thereunder.
4. Upon the execution and delivery of this Agreement,
the Assignee shall deliver to Assignor by wire transfer of immediately available
funds $_______ [Insert amounts owing with respect to Assigned Advances, etc.]
[Other consideration/adjustments].
2
72
5. The Company hereby agrees that the Assignee shall be
a Bank under the Credit Agreement having [a Commitment] [Advances] equal to the
Assigned [Commitment] [Advances]. The Company agrees that the Assignee shall
have all of the rights and remedies of a Bank under the Credit Agreement as if
the Assignee were an original Bank and signatory under the Credit Agreement
including, but not limited to, the right of a Bank to receive payments of
principal and interest with respect to the Assigned Advances, if any, and to the
Advances made by the Banks after the date hereof and, if applicable, to receive
the facility fees payable to the Banks as provided in the Credit Agreement.
Further, the Assignee shall be entitled to the indemnification provisions from
the Company in favor of the Banks as provided in the Credit Agreement. The
Company further agrees, upon the execution and delivery of this Agreement, to
execute in favor of the Assignee a promissory note in substantially the form of
Exhibit B to the Credit Agreement in the face amount of the Assigned Commitment.
Further, the Company agrees that, upon the execution and delivery of this
Agreement, the Company shall owe the Assigned Advances to the Assignee as if the
Assignee were the Bank originally making such Advances.
6. For purposes of delivering any notice to the Assignee
as a Bank under the Credit Agreement, the following sets forth the address of
the Assignee for such purpose:
--------------------
--------------------
--------------------
Telecopy No.________
Attention:__________
7. The Administrative Agent hereby consents to the
assignment and assumption contemplated herein.
8. The Assignor agrees to pay the Administrative Agent a
servicing fee equal to $3,000 immediately upon the execution and delivery of
this Agreement.
9. This Agreement, and the assignment and assumption
contemplated herein, shall not be effective until (a) this Agreement is signed
by each of the Assignor, the Assignee, the Company and the Administrative Agent;
(b) the payment to the Assignor of the amounts owning by the Assignee pursuant
to paragraph 4 hereof; and (c) the payment to the Administrative Agent of the
fee owning to the Administrative Agent pursuant to paragraph 8 hereof.
10. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
11. This Agreement may be executed in any number of
counterparts each of which, when taken together, shall constitute one and the
same agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Assignment and Assumption Agreement as of the date and year first written above.
THE ASSIGNOR:
-----------------------------------
By:
--------------------------------
Title:
--------------------------
THE ASSIGNEE:
-----------------------------------
By:
--------------------------------
Title:
--------------------------
THE COMPANY:
DELTA AIR LINES, INC.
By:
--------------------------------
Title:
--------------------------
THE ADMINISTRATIVE AGENT:
CITICORP NORTH AMERICA, INC., as
Administrative Agent
By:
--------------------------------
Title:
--------------------------
4
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SCHEDULE I
FUNDED DEBT*
1. 6.65-9.15% Notes with maturities ranging from 2001 to 2004
2. 8.50% Notes due March 15, 2002
3. 8.125% Notes due July 1, 2039
4. 7.70% Notes due December 15, 2005
5. 7.90% Notes due December 15, 2009
6. 8.30% Notes due December 15, 2029
7. 8.10% Guaranteed Serial ESOP Notes, payable in installments between
2002 and 2009
8. 7.379% Equipment Notes due in installments between 2001 and 2010
9. 7.570% Equipment Notes due November 18, 2010
10. 7.920% Equipment Notes due November 18, 2010
11. 7.779% Equipment Notes due November 18, 2005
12. 10.125% Debentures due May 15, 2010
13. 10.375% Debentures due February 1, 2011
14. 9.00% Debentures due May 15, 2016
15. 9.75% Debentures due May 15, 2021
16. 9.25% Debentures due March 15, 2022
17. 10.375% Debentures due December 15, 2022
18. Development Authority of Fulton County Loan Agreement dated May 1, 1998
19. Development Authority of Fulton County Loan Agreement dated September
1, 1992
20. Development Authority of Clayton County Loan Agreement dated May 1,
2000 (Series A, B, C)
21. Capital Leases:
(a) Forty-One B737-200 Aircraft Leases
(b) Nine Western Aircraft Leases (4 B737-200; 3 B737-300 and 2
B727-200)
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16. Credit Agreement, dated as of May 2, 1997, among the Company, the
several financial institutions which are parties thereto and
Nationsbank, N.A. (South), as Agent Bank
17. Reimbursement Agreement, dated as of May 1, 2000 among the Company, the
several financial institutions which are parties thereto and
Commerzbank, AG, New York Branch, as Agent and Fronting Bank
18. Credit Agreement, dated as of May 19, 2000 among the Company, the
several financial institutions which are parties thereto and Bayerische
Hypo-und Vereinsbank AG, New York Branch, as Agent and Letter of Credit
Bank
2
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SECURED OBLIGATIONS
1. $96,500,000 The Port Authority of New York and New Jersey Special
Projects Bonds, Series 1R (Delta Air Lines, Inc. Project)
2. Nine Western Air Lines Capital Leases (4 B737-200; 3 B737-300 and 2
B727-200)
3. SATO Guaranty (pledge of Company's government receivables to provide
collateral for SATO credit agreement)
4. $120,000,000 Various Credit Agreements by 27 EMB-120 Brasilians and 4
CRJs at Atlantic Southeast Airlines, Inc.
5. $100,600,000 Various Credit Agreements by 10 CRJs and 8 Brasilias at
Comair Airlines, Inc.
6. 7.379% Equipment Notes due in installments between 2001 and 2010
7. 7.570% Equipment Notes due November 18, 2010
8. 7.920% Equipment Notes due November 18, 2010
9. 7.779% Equipment Notes due November 18, 2005
10. JFK Financing*
11. Boston Financing*
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* As of the Effective Date of this Agreement, the Company is considering various
means for financing proposed airport facilities projects at Boston Logan
International Airport (BOS) and John F. Kennedy International Airport (JFK).
Since the Company has not yet determined the structure for such financings, the
intent of these provisions is to include such financings in the lists set forth
in those schedules once such financings occur, if ever, and to the extent
applicable to the structures ultimately selected by the Company.
3
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SCHEDULE II
SUBSIDIARIES OF DELTA AIR LINES, INC.
Aero Assurance, Ltd. DAL Receivables LLC
ASA Holdings, Inc. DASH Management, Inc.
Atlantic Southeast Airlines, Inc. Delta Air Lines and Pan American
World Airways Unterstutzungkasse GmbH
C.V.G. Aviation, Inc.
Delta Air Technology, Ltd.
CMD, Limited
Delta Airline Receivables Corp.
Comair Acquisition, Inc.
Delta Benefits Management, Inc.
Comair Aviation Academy, Inc. (f/k/a Delta Air Lines Funding Corporation)
Comair Capital Markets, Inc. Delta Connection, Inc.
Comair Holdings, Inc. Delta Corporate Identity, Inc.
Comair Services, Inc. Delta Loyalty Management Services, Inc. (f/k/a Delta Tel, Inc.)
Comair, Inc. Delta Technology, Inc.
Crown Rooms of Texas, Inc. Delta Ventures III, Inc.
Crown Rooms, Inc. Epsilon Trading, Inc.
DAL Aircraft Trading, Inc. Guardant, Inc.
DAL Foreign Sales, Inc. Kappa Capital Markets, Inc. (f/k/a Delta Air Lines Holdings, Inc.)
DAL Global Services, Inc. TransQuest Holdings, Inc.
DAL Moscow, Inc.
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SCHEDULE III
GUARANTY LIABILITIES
$88,000,000 Regional Airports Improvement Corporation 6 35% Facilities Sublease
Revenue Bonds, Issue of 1996 Delta Air Lines, Inc. (Los Angeles International
Airport)
SATO Guaranty (Company's allocable share of $25 million SATO revolving credit
facility, used by SATO to advance payments to top airlines on government
receivables)
JFK Financing*
Boston Financing*
- ---------------
*As of the Effective Date of this Agreement, the Company is considering various
means for financing proposed airport facilities projects at Boston Logan
International Airport (BOS) and John F. Kennedy International Airport (JFK).
Since the Company has not yet determined the structure for such financings, the
intent of these provisions is to include such financings in the lists set forth
in those schedules once such financings occur, if ever, and to the extent
applicable to the structures ultimately selected by the Company.