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This excerpt taken from the AYR 8-K filed May 5, 2008. deficiency
advance”) and shall thereafter be entitled to payments of principal of
and interest on such deficiency advance in the same manner and at the same
interest rate or rates as if it had originally made such Loan; provided that, (i) such
defaulting Lender shall not be entitled to receive payments of principal,
interest or fees with respect to such deficiency advance until such deficiency
advance shall be paid by such Lender and (ii) upon payment to the Facility
Agent from such other Lender of the entire outstanding amount of each such
deficiency advance, together with accrued and unpaid interest thereon, from the
most recent date or dates interest was paid to the Facility Agent by a Borrower
on each Loan comprising the deficiency advance at the interest rate per annum
for overnight borrowing by the Facility Agent from the Federal Reserve Bank,
then such payment shall be to the Facility Agent as a Lender in full payment of
such deficiency advance and such Borrower shall be deemed to have borrowed the
amount of such deficiency advance from such other Lender as of the most recent
date or dates, as the case may be, upon which any payments of interest were made
by such Borrower thereon.
2.6. Use of Proceeds. The
proceeds of each Loan made pursuant to the Term Loan Facility hereunder shall be
used by the Applicable Borrower to (a) finance the payment of the Individual
Aircraft Commitment Amount with respect to certain of the ACS Group Aircraft
pursuant to the Purchase Agreements or (b) to fund each Aircraft Purchase
Account in an amount equal to the Individual Aircraft Commitment Amount with
respect to each other ACS Group Aircraft.
12
ARTICLE
III
[RESERVED]
ARTICLE
IV
CHANGE IN
CIRCUMSTANCES
4.1. Requirements of Law.
(a) If
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the date hereof:
(i)
shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office of
such Lender that is not otherwise included in the determination of the
Eurodollar Rate; or
(ii)
shall impose on such Lender any other condition;
and
the result of any of the foregoing is to increase the cost (other than by reason
of a Tax) to such Lender, by an amount that such Lender deems to be material, of
continuing or maintaining or funding Eurodollar Rate Loans or to reduce any
amount receivable hereunder in respect thereof (other than by reason of any
Tax), then, in any such case, the Borrowers shall promptly pay such Lender,
within 10 Business Days after delivery of written notice to the Borrowers, any
additional amounts necessary to compensate such Lender (on an after-tax basis)
for such increased cost or reduced amount receivable. If any Lender
becomes entitled to claim any additional amounts pursuant to this paragraph, it
shall promptly notify the Borrowers (with a copy to the Facility Agent) of the
event by reason of which it has become so entitled.
(b) If
any Lender shall have determined that the adoption of or any change in any
Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority (including without
limitation, implementation of laws, directives, requirements or guidelines
arising out of the paper entitled “International Convergence of Capital
Measurement and Capital Standards, A Revised Framework” issued by the Bank of
International Settlement on 26 June 2004) made subsequent to the date hereof
shall have the effect of reducing the rate of return on such Lender’s or such
corporation’s capital as a consequence of its obligations hereunder to a level
below that which such Lender or such corporation could have achieved but for
such adoption, change or compliance (taking into consideration such Lender’s or
such corporation’s policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, after submission
by such Lender to the Borrowers (with a copy to the Facility Agent) of a written
request therefor, the Borrowers shall pay to such
13
Lender
such additional amount or amounts as will compensate such Lender or such
corporation (on an after-tax basis) for such reduction within 10 Business Days
after the delivery of such written request.
(c) Each
Lender shall promptly notify each of the Borrowers and the Facility Agent of any
event of which it has knowledge occurring after the date hereof, which will
entitle a Lender to compensation pursuant to this Section 4.1, and
such Lender shall, upon written request by any Borrower, designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole judgment of such
Lender, be otherwise disadvantageous to it. A certificate as to any
additional amounts payable pursuant to this Section submitted by any Lender
to the Borrowers (with a copy to the Facility Agent) shall be conclusive in the
absence of manifest error; provided that any
determination and allocations by such Lender of the effect of any change in a
Requirement of Law are made on a reasonable basis. Notwithstanding
anything to the contrary in this Section, the Borrowers shall not be required to
compensate a Lender pursuant to this Section for any amounts incurred more
than three months prior to the date that such Lender notifies the Borrowers of
such Lender’s intention to claim compensation therefor; provided that, if the
circumstances giving rise to such claim have a retroactive effect, then such
three-month period shall be extended to include the period of such retroactive
effect. The obligations of the Borrowers pursuant to this
Section shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
4.2. Limitation on Types of
Loans. If on or prior to the first day of any Interest Period
for any Eurodollar Rate Loan:
(a) the
Facility Agent determines (which determination shall be conclusive) that by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such Interest
Period; or
(b) the
Required Lenders determine (which determination shall be conclusive) and notify
the Facility Agent that the Eurodollar Rate will not adequately and fairly
reflect the cost to the Lenders of funding Eurodollar Rate Loans for such
Interest Period;
then
the Facility Agent shall give the Borrowers prompt notice thereof and the
Borrowers shall, jointly and severally, on the last day(s) of the then current
Interest Period(s) for the outstanding Loans, either prepay such Loans or
convert such Loans into Base Rate Loans in accordance with the terms of this
Agreement.
4.3. Illegality. Notwithstanding
any other provision of this Agreement, in the event that it becomes unlawful for
any Lender or its Applicable Lending Office to maintain Eurodollar Rate Loans
hereunder, then such Lender shall promptly notify the Borrowers thereof and such
Lender’s obligation to continue Eurodollar Rate Loans shall be suspended until
such time as such Lender may maintain Eurodollar Rate Loans (in which case the
provisions of Section 4.4 shall be applicable).
4.4.
Treatment of Affected
Loans. If the obligation of any Lender to continue a
Eurodollar Rate Loan shall be suspended pursuant to Section 4.3 hereof
(such Loans being
14
herein
called “ This excerpt taken from the AYR 8-K filed May 5, 2008. deficiency
advance”) and shall thereafter be entitled to payments of principal of
and interest on such deficiency advance in the same manner and at the same
interest rate or rates as if it had originally made such Loan; provided that, (i) such
defaulting Lender shall not be entitled to receive payments of principal,
interest or fees with respect to such deficiency advance until such deficiency
advance shall be paid by such Lender and (ii) upon payment to the Facility
Agent from such other Lender of the entire outstanding amount of each such
deficiency advance, together with accrued and unpaid interest thereon, from the
most recent date or dates interest was paid to the Facility Agent by a Borrower
on each Loan comprising the deficiency advance at the interest rate per annum
for overnight borrowing by the Facility Agent from the Federal Reserve Bank,
then such payment shall be to the Facility Agent as a Lender in full payment of
such deficiency advance and such Borrower shall be deemed to have borrowed the
amount of such deficiency advance from such other Lender as of the most recent
date or dates, as the case may be, upon which any payments of interest were made
by such Borrower thereon.
2.6. Use of Proceeds. The
proceeds of each Loan made pursuant to the Term Loan Facility hereunder shall be
used by the Applicable Borrower to (a) finance the payment of the Individual
Aircraft Commitment Amount with respect to certain of the ACS Group Aircraft
pursuant to the Purchase Agreements or (b) to fund each Aircraft Purchase
Account in an amount equal to the Individual Aircraft Commitment Amount with
respect to each other ACS Group Aircraft.
12
ARTICLE
III
[RESERVED]
ARTICLE
IV
CHANGE IN
CIRCUMSTANCES
4.1. Requirements of Law.
(a) If
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the date hereof:
(i)
shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office of
such Lender that is not otherwise included in the determination of the
Eurodollar Rate; or
(ii)
shall impose on such Lender any other condition;
and
the result of any of the foregoing is to increase the cost (other than by reason
of a Tax) to such Lender, by an amount that such Lender deems to be material, of
continuing or maintaining or funding Eurodollar Rate Loans or to reduce any
amount receivable hereunder in respect thereof (other than by reason of any
Tax), then, in any such case, the Borrowers shall promptly pay such Lender,
within 10 Business Days after delivery of written notice to the Borrowers, any
additional amounts necessary to compensate such Lender (on an after-tax basis)
for such increased cost or reduced amount receivable. If any Lender
becomes entitled to claim any additional amounts pursuant to this paragraph, it
shall promptly notify the Borrowers (with a copy to the Facility Agent) of the
event by reason of which it has become so entitled.
(b) If
any Lender shall have determined that the adoption of or any change in any
Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority (including without
limitation, implementation of laws, directives, requirements or guidelines
arising out of the paper entitled “International Convergence of Capital
Measurement and Capital Standards, A Revised Framework” issued by the Bank of
International Settlement on 26 June 2004) made subsequent to the date hereof
shall have the effect of reducing the rate of return on such Lender’s or such
corporation’s capital as a consequence of its obligations hereunder to a level
below that which such Lender or such corporation could have achieved but for
such adoption, change or compliance (taking into consideration such Lender’s or
such corporation’s policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, after submission
by such Lender to the Borrowers (with a copy to the Facility Agent) of a written
request therefor, the Borrowers shall pay to such
13
Lender
such additional amount or amounts as will compensate such Lender or such
corporation (on an after-tax basis) for such reduction within 10 Business Days
after the delivery of such written request.
(c) Each
Lender shall promptly notify each of the Borrowers and the Facility Agent of any
event of which it has knowledge occurring after the date hereof, which will
entitle a Lender to compensation pursuant to this Section 4.1, and
such Lender shall, upon written request by any Borrower, designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole judgment of such
Lender, be otherwise disadvantageous to it. A certificate as to any
additional amounts payable pursuant to this Section submitted by any Lender
to the Borrowers (with a copy to the Facility Agent) shall be conclusive in the
absence of manifest error; provided that any
determination and allocations by such Lender of the effect of any change in a
Requirement of Law are made on a reasonable basis. Notwithstanding
anything to the contrary in this Section, the Borrowers shall not be required to
compensate a Lender pursuant to this Section for any amounts incurred more
than three months prior to the date that such Lender notifies the Borrowers of
such Lender’s intention to claim compensation therefor; provided that, if the
circumstances giving rise to such claim have a retroactive effect, then such
three-month period shall be extended to include the period of such retroactive
effect. The obligations of the Borrowers pursuant to this
Section shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
4.2. Limitation on Types of
Loans. If on or prior to the first day of any Interest Period
for any Eurodollar Rate Loan:
(a) the
Facility Agent determines (which determination shall be conclusive) that by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such Interest
Period; or
(b) the
Required Lenders determine (which determination shall be conclusive) and notify
the Facility Agent that the Eurodollar Rate will not adequately and fairly
reflect the cost to the Lenders of funding Eurodollar Rate Loans for such
Interest Period;
then
the Facility Agent shall give the Borrowers prompt notice thereof and the
Borrowers shall, jointly and severally, on the last day(s) of the then current
Interest Period(s) for the outstanding Loans, either prepay such Loans or
convert such Loans into Base Rate Loans in accordance with the terms of this
Agreement.
4.3. Illegality. Notwithstanding
any other provision of this Agreement, in the event that it becomes unlawful for
any Lender or its Applicable Lending Office to maintain Eurodollar Rate Loans
hereunder, then such Lender shall promptly notify the Borrowers thereof and such
Lender’s obligation to continue Eurodollar Rate Loans shall be suspended until
such time as such Lender may maintain Eurodollar Rate Loans (in which case the
provisions of Section 4.4 shall be applicable).
4.4.
Treatment of Affected
Loans. If the obligation of any Lender to continue a
Eurodollar Rate Loan shall be suspended pursuant to Section 4.3 hereof
(such Loans being
14
herein
called “ | EXCERPTS ON THIS PAGE:
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