EXHIBIT 10.5
$1,500,000,000.00 Second Amended and Restated
364-Day Revolving Credit Agreement
dated as of
January 17, 2002
among
INTERNATIONAL LEASE FINANCE CORPORATION,
THE BANKS (as defined herein),
CITICORP USA, INC.,
as Administrative Agent,
and
XXXXXXX XXXXX XXXXXX INC.,
as Arranger and Book Manager
SECOND AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AGREEMENT
SECOND AMENDED AND RESTATED 364-DAY REVOLVING CREDIT AGREEMENT (this
"Agreement") dated as of January 17, 2002 among INTERNATIONAL LEASE FINANCE
CORPORATION, a California corporation (the "Company"), the financial
institutions listed on the signature pages hereof (herein, together with their
respective successors and assigns, collectively called the "Banks" and
individually each called a "Bank") and CITICORP USA, INC. (herein, in its
individual capacity, together with it successors and assigns, called "CUSA"), as
agent for the Banks (herein, in such capacity, together with is successors and
assigns in such capacity, called the "Agent").
The Company, the Agent and certain Banks are parties to a 364-Day
Revolving Credit Agreement dated as of November 15, 2000 (as modified, amended
and in effect on the date hereof, the "Existing Credit Agreement").
The Company has requested that the Existing Credit Agreement be amended
to, among other things, decrease the Aggregate Commitment from $1,800,000,000 to
$1,500,000,000, extend the Termination Date, add The Governor and Company of the
Bank of Scotland, Barclays Bank Plc, Dai-Ichi Kangyo Bank, Ltd., Lloyds TSB Bank
Plc and Xxxxxx Commercial Paper Inc. (each a "New Bank") as a "Bank" under the
Existing Credit Agreement and modify certain other provisions thereof, all as
set forth herein, and that the Existing Credit Agreement be restated in its
entirety as so amended, all as of the Restatement Effective Date (as hereinafter
defined).
Accordingly, the parties hereto agree as follows:
SECTION 1.01. DEFINITIONS; INTERPRETATION. Capitalized terms used but
not otherwise defined herein have the respective meanings ascribed thereto in
the Existing Credit Agreement. The provisions hereof shall be deemed to have
effect from the Restatement Effective Date without retroactive effect.
SECTION 1.02. AMENDMENTS. Effective as of the Restatement Effective
Date, the Existing Credit Agreement is amended as follows and, as so amended, is
hereby restated in its entirety:
(1) The references on the cover page and in the recitals of the Existing
Credit Agreement, in the definition of "Aggregate Commitment" in Section 1.2 of
the Existing Credit Agreement and in each Exhibit to the Existing Credit
Agreement to the aggregate amount of the Commitments are amended to refer to the
aggregate amount of $1,500,000,000, and Schedule I to the Existing Credit
Agreement is amended to read in its entirety in accordance with Schedule I
hereto.
(2) The reference to "January 17, 2002" in the definition of
"Termination Date" in Section 1.2 of the Existing Credit Agreement is amended to
read "January 16, 2003".
(3) (a) The reference to "Section 6.4(b)" in Section 13.4.1 of the
Existing Credit Agreement is amended to read "Section 6.4(b) and in Section
6.4(c)", and the reference to "Sections 7.1, 7.4, 13.5 and 13.6" in Section
13.4.2 of the Existing Credit Agreement is amended to read "Sections 6.4(b),
6.4(c), 7.1, 7.4, 13.5 and 13.6".
(b) Section 6.4 of the Existing Credit Agreement is amended to read in
its entirety as follows:
Section 6.4. Taxes, etc. (a) All payments made by the Company to
the Agent, any Bank, any Assignee or any Participant under this Agreement
and the Notes shall be made without any set-off or counterclaim, and free
and clear of and without deduction for or on account of any present or
future Taxes now or hereafter imposed (except to the extent that such
withholding or deduction is compelled by law or results from the breach, by
the recipient of a payment, of its agreement contained in Section 6.4(b) or
6.4(c) or would not be required if the representation or warranty contained
in Section 6.4(b) were true), excluding any Taxes generally assessed on the
overall net income of the Agent, any Bank, any Assignee or any Participant,
as the case may be, by the government or other authority of the country in
which the Agent, such Bank, such Assignee or such Participant is
incorporated or in which its Funding Office or the office through which it
is acting is located. If the Company is compelled by law to make any such
deductions or withholdings it will:
(i) pay to the relevant authorities the full amount required to
be so withheld or deducted,
(ii) except to the extent that such withholding or deduction
results from the breach by the recipient of a payment of its agreement
contained in Section 6.4(b) or 6.4(c) or would not be required if the
representation or warranty contained in Section 6.4(b) were true, pay
such additional amounts as may be necessary in order that the net amount
received by the Agent, each Bank, each Assignee and each Participant
after such deductions or withholdings (including any required deduction
or withholding on such additional amounts) shall equal the amount such
payee would have received had no such deductions or withholdings been
made, and
(iii) promptly forward to the Agent (for delivery to such payee)
an official receipt or other documentation satisfactory to the Agent
evidencing such payment to such authorities.
Moreover, if any Taxes are directly asserted against the Agent, any Bank,
any Assignee or any Participant, such payee may pay such Taxes and the
Company shall promptly pay such additional amount (including, without
limitation, any penalties, interest or expenses) as may be necessary in
order that the net amount received by such payee after the payment of such
Taxes (including any Taxes on such additional amount) shall equal the amount
such payee would have received had no such Taxes been asserted (provided,
that the Agent, the Banks, and any Assignee or Participant shall use
reasonable efforts, to the
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extent consistent with applicable laws and regulations, to minimize to the
extent possible any such Taxes if they can do so without material cost or
legal or regulatory disadvantage). For purposes of this Section 6.4, a
distribution hereunder by the Agent or any Bank to or for the account of any
Bank, Assignee or Participant shall be deemed to be a payment by the
Company. The Company's agreement under this Section 6.4 shall survive
repayment of the Loans, cancellation of the Notes or any termination of this
Agreement.
(b) In consideration of, and as a condition to, the Company's
undertakings in Section 6.4(a), each Bank other than a Bank that is
organized and existing under the laws of the United States of America or any
State thereof (a "Non-U.S. Bank") agrees to execute and deliver to the Agent
at its Payment Office for delivery to the Company, before the first
scheduled payment date in each year, (i) to the extent it acts for its own
account with respect to any portion of any sums paid or payable to such Bank
under this Agreement, two original copies of United States Internal Revenue
Service Forms W-8BEN or W-8ECI (or any successor forms), as appropriate,
properly completed and duly executed by such Non-U.S. Bank, and claiming
complete exemption from withholding and deduction of United States federal
Taxes, and (ii) to the extent it does not act or has ceased to act for its
own account with respect to any portion of any sums paid or payable to such
Bank under this Agreement (for example, in the case of a typical
Participation by such Bank), (1) for the portion of any such sums paid or
payable with respect to which such Bank acts for its own account, two
original copies of the forms or statements required to be provided by such
Bank under subsection (i) of this Section 6.4(b), properly completed and
duly executed by such Non-U.S. Bank and claiming complete exemption from
withholding and deduction of United States federal Taxes, and (2) for the
portion of any such sums paid or payable with respect to which such Non-U.S.
Bank does not act or has ceased to act for its own account, two original
copies of United States Internal Revenue Service Form W-8IMY (or any
successor forms), properly completed and duly executed by such Non-U.S.
Bank, together with any information, if any, such Non-U.S. Bank chooses to
transmit with such form, and any other certificate or statement of exemption
required under the Internal Revenue Code or the regulations issued
thereunder. Each Bank represents and warrants to the Company that, at the
date of this Agreement, or at the time such Bank becomes a Bank hereunder
pursuant to Section 13.4.1 or 13.8(c), its Funding Office is entitled to
receive payments of principal and interest hereunder without deduction for
or on account of any Taxes imposed by the United States of America or any
political subdivision thereof.
(c) Each Non-US Bank hereby agrees, from time to time after the
initial delivery by such Non-U.S. Bank of any forms or other information
pursuant to Section 6.4(b), whenever a lapse in time or change in
circumstances renders such forms, certificates or other evidence so
delivered obsolete or inaccurate in any material respect, that such Non-U.S.
Bank shall promptly (and in all events, prior to the next applicable payment
date), deliver to Agent at its Payment Office for delivery to the Company
two original copies of any renewal, amendment or additional or successor
forms, properly completed and duly executed by such Non-U.S. Bank, together
with any other certificate or statement of exemption required by applicable
law or regulation in order to (i) confirm
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or establish such Non-U.S. Bank's complete exemption from withholding and
deduction of United States federal Taxes with respect to payments to such
Bank under this Agreement or (ii) in the case of a change in law after the
date on which such Non-U.S. Bank became a Bank hereunder pursuant to Section
13.4.1 that results in a withholding or deduction of United States federal
Taxes on payments hereunder to such Non-U.S. Bank, establish the status of
such Non-U.S. Bank as other than a United States person for United States
federal Tax purposes and claim the benefit of a reduced rate of withholding
and deduction of United States federal Taxes with respect to any such
payments under an applicable tax treaty of the United States, or (iii) if
applicable, confirm or establish that such Non-U.S. Bank does not act for
its own account with respect to any portion of any such payments.
(d) Nothing contained in this Section 6.4 shall require any Bank to
make available its tax returns (or any other information relating to its
taxes that it deems confidential) to the Company or any other Person.
(4) The reference to "September 30, 1994" in the definition of
"Consolidated Tangible Net Worth" in Section 1.2 of the Existing Credit
Agreement is amended to read "December 31, 2000", and Section 9.12 of the
Existing Credit Agreement is amended to read in its entirety as follows:
Section 9.12. Consolidated Tangible Net Worth. Not permit the
Company's Consolidated Tangible Net Worth to be less than $2,750,000,000
minus, to the extent included in the calculation of Consolidated Tangible
Net Worth, other comprehensive income of the Company and its Subsidiaries
(or, in the case of a comprehensive income deficit, plus the amount of such
deficit) plus 50% of (a) the cumulative net income (but without deduction
for cumulative net losses) of the Company and its Subsidiaries since
December 31, 2000 determined on a consolidated basis in accordance with
United States of America generally accepted accounting principles, (b) the
cumulative equity capital contributions from AIG since December 31, 2000 and
(c) the net proceeds from the sale of preferred stock, in each case for the
period from December 31, 2000 to and including the date of any determination
hereunder.
(5) The proviso to Section 4.5 of the Existing Credit Agreement is
amended to read in its entirety as follows:
provided, that if the then outstanding aggregate principal amount of Bid
Loans exceeds an amount equal to 33.33% of the Aggregate Commitments as then
in effect, then in calculating the aggregate outstanding principal amount of
the Loans for purposes of this Section 4.5 only, the aggregate outstanding
principal amount of Loans shall not include an amount equal to 33.33% of the
Aggregate Commitments as then in effect.
(6) The first reference to "364 days" in Section 13.8(a) of the Existing
Credit Agreement is amended to read "364 days, or such shorter period as agreed
upon by the Company and the Agent", and the second reference to "364 days" in
said Section 13.8(a) is amended to read "364 days, or such shorter period as
agreed as provided above,"
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(7) Schedule II to the Existing Credit Agreement is amended to read in
its entirety in accordance with Schedule II hereto.
(8) Each New Bank shall be deemed to be a "Bank" under and for all
purposes of the Existing Credit Agreement as amended and restated hereby and
each reference in the Existing Credit Agreement as amended and restated hereby
to "Bank" shall be deemed to include each New Bank, and each New Bank shall have
a "Commitment" in the amount set opposite its name on Schedule II hereto.
SECTION 1.03. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Agent and the Banks as of the Restatement Effective Date that
each of the representations and warranties set forth in Section 8 of the
Existing Credit Agreement (other than Section 8.17 thereof), as amended and
restated hereby, is true on and as of the Restatement Effective Date as if made
on and as of the Restatement Effective Date. The parties hereto agree that it
shall be deemed an Event of Default under Section 11.1.5 of the Credit
Agreement, as amended and restated hereby, if the representations and warranties
contained in this Section 1.03 shall prove to have been untrue or misleading in
any material respect when made or deemed made.
SECTION 1.04. RESTATEMENT EFFECTIVE DATE. This Agreement shall become
effective on the date hereof (the "Restatement Effective Date") upon the
satisfaction prior to such date of the following conditions:
(a) Agreement. The Agent shall have received this Agreement duly
executed and delivered by each of the Banks and the Company and the Agent
shall have received a fully executed Committed Note and a fully executed Bid
Note for each Bank, and the Company shall have received from each bank party
to the Existing Credit Agreement its Committed Note and Bid Note, each
marked "Cancelled", or such other satisfactory evidence of cancellation
thereof.
(b) Evidence of Corporate Action. The Agent shall have received
certified copies of all corporate actions taken by the Company to authorize
this Agreement and the Notes.
(c) Incumbency and Signatures. The Agent shall have received a
certificate of the Secretary or an Assistant Secretary of the Company
certifying the names of the officer or officers of the Company authorized to
sign this Agreement, the Notes and the other documents provided for in this
Agreement to be executed by the Company, together with a sample of the true
signature of each such officer (it being understood that the Agent and each
Bank may conclusively rely on such certificate until formally advised by a
like certificate of any changes therein).
(d) Good Standing Certificates. The Agent shall have received such good
standing certificates of state officials with respect to the incorporation
of the Company, or other matters, as the Agent or the Banks may reasonably
request.
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(e) Opinions of Company Counsel. The Agent shall have received favorable
written opinions of O'Melveny & Xxxxx LLP, counsel for the Company, in
substantially the form of Exhibit G to the Existing Credit Agreement (with
appropriate modifications to reflect the amendment and restatement thereof
contemplated hereby and the elimination of Regulation G), and the General
Counsel of the Company, in substantially the form of Exhibit H to the
Existing Credit Agreement (with appropriate modifications to reflect the
amendment and restatement thereof contemplated hereby and changes to the
list of the Company's Subsidiaries).
(f) Opinion of Agent's Counsel. The Agent shall have received a
favorable written opinion of Milbank, Tweed, Xxxxxx & XxXxxx LLP, special
New York counsel to the Agent, with respect to documents received by the
Agent and the Banks and such legal matters as the Agent reasonably may
require.
(g) Other Documents. The Agent shall have received such other
certificates and documents as the Agent or the Banks reasonably may require.
(h) Fees. The Agent shall have received for the account of the Agent the
Agent's fees payable to the Funding Date pursuant to Section 4.6 of the
Existing Credit Agreement.
(i) Material Adverse Change. The Agent shall have received a certificate
of the Company's chief financial officer confirming that since the date of
the audited financial statements identified in Section 8.4 of the Existing
Credit Agreement, there shall not have occurred any material adverse change
in the business, credit, operations, financial condition or prospects of the
Company and its Subsidiaries taken as a whole.
SECTION 1.05. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that the
Company may not assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all the Banks.
(b) This Agreement shall be governed by and construed in accordance with
the law of the State of New York.
(c) This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures hereto
were upon the same instrument. This Agreement constitutes the entire agreement
and understanding among the parties hereto and supersede any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
Company: INTERNATIONAL LEASE FINANCE
CORPORATION
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
Agent: CITICORP USA, INC., as Agent
By:
-------------------------------------
Name:
Title:
Banks: CITICORP USA, INC.
By:
-------------------------------------
Name:
Title:
JPMORGAN CHASE BANK
By:
-------------------------------------
Name:
Title:
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.
By:
-------------------------------------
Name:
Title:
THE GOVERNOR AND COMPANY OF THE
BANK OF SCOTLAND
By:
-------------------------------------
Name:
Title:
ABN AMRO BANK N.V.
By:
-------------------------------------
Name:
Title:
SOCIETE GENERALE
By:
-------------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By:
-------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
-------------------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK
BRANCH
By:
-------------------------------------
Name:
Title:
LLOYDS TSB BANK PLC
By:
-------------------------------------
Name:
Title:
BARCLAYS BANK PLC
By:
-------------------------------------
Name:
Title:
THE SANWA BANK, LIMITED
By:
-------------------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.
By:
-------------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
-------------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By:
-------------------------------------
Name:
Title:
SANPAOLO IMI S.p.A.
By:
-------------------------------------
Name:
Title:
STANDARD CHARTERED BANK
By:
-------------------------------------
Name:
Title:
Schedule I
Schedule of Banks
BANK COMMITMENT
---- ----------
Citicorp USA, Inc. $180,000,000
JPMorgan Chase Bank $172,500,000
Commerzbank AG, New York and Grand Cayman $172,500,000
Branches
The Bank of Tokyo-Mitsubishi, Ltd. $172,500,000
The Governor and Company of the
Bank of Scotland $172,500,000
ABN AMRO Bank N.V. $120,000,000
Societe Generale $120,000,000
Westdeutsche Landesbank Girozentrale $90,000,000
The Bank of New York $60,000,000
Deutsche Bank AG New York Branch $45,000,000
Lloyds TSB Bank Plc $45,000,000
Barclays Bank Plc $30,000,000
The Sanwa Bank, Limited $30,000,000
Xxxxxx Commercial Paper Inc. $30,000,000
The Industrial Bank of Japan, Limited $15,000,000
The Dai-Ichi Kangyo Bank, Ltd. $15,000,000
SANPAOLO IMI S.p.A. $15,000,000
Standard Chartered Bank $15,000,000
Schedule II
Fees and Margins
(in basis points)
Level I Level II Level III Level IV Level V Level VI
Pricing Pricing Pricing Pricing Pricing Pricing
------- -------- --------- -------- ------- --------
Facility Fee 7.0 8.0 9.0 10.0 12.5 17.5
Margins:
LIBOR 8.0 17.0 26.0 35.05 47.5 57.5
Base 0.0 0.00 0.0 0.0 0.0 0.0
Competitive As bid by As bid by As bid by As bid by As bid by As bid by
Bid Option the Banks the Banks the Banks the Banks the Banks the Banks
----------- --------- --------- --------- --------- --------- ---------
Utilization Fee
Rate:
In excess 5.0 5.0 5.0 5.0 5.0 10.0
of 33.33%
In excess 10.0 10.0 10.0 15.0 15.0 25.0
of 66.66%
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Pricing" means the pricing during any period during which the
Company's long-term senior unsecured debt is rated AA or higher by S&P or Aa2 or
higher by Moody's.
"Level II Pricing" means the pricing during any period during which (i)
the Company's long-term senior unsecured debt is rated AA- or higher by S&P or
Aa3 or higher by Moody's and (ii) Level I Pricing does not apply.
"Level III Pricing" means the pricing during any period during which (i)
the Company's long-term senior unsecured debt is rated A+ or higher by S&P or A1
or higher by Moody's and (ii) neither Level I Pricing nor Level II Pricing
applies.
"Level IV Pricing" means the pricing during any period during which (i)
the Company's long-term senior unsecured debt is rated A or higher by S&P or A2
or higher by Moody's and (ii) none of Level I Pricing, Level II Pricing and
Level III Pricing applies.
"Level V Pricing" means the pricing during any period during which (i)
the Company's long-term senior unsecured debt is rated A- or higher by S&P or A3
or higher by Moody's and (ii) none of Level I Pricing, Level II Pricing, Level
III Pricing and Level IV Pricing applies.
"Level VI Pricing" means the pricing during any period during which no
other Pricing Level applies.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor
corporation thereto.
"Pricing Level" means Level I Pricing, Level II Pricing, Level III
Pricing, Level IV Pricing, Level V Pricing and Level VI Pricing.
"S & P's" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor corporation thereto.
Any change in fees or margins by reason of a change in S&P's rating or
Xxxxx'x rating shall become effective on the date of announcement or publication
by the respective rating agencies of a change in such rating or, in the absence
of such announcement or publication, on the effective date of such changed
rating.
If S&P's rating and Xxxxx'x rating differ by more than one rating level,
then the applicable Pricing Level shall be one rating level higher than the
Pricing Level resulting from the application of the lower of such ratings.
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