BRIDGE CREDIT AGREEMENT
BRIDGE CREDIT AGREEMENT dated as of October 10, 2000 (the "Credit
Agreement" or this "Agreement") is by and among SABRE INC., a Delaware
corporation (the "Borrower"), the lenders whose names appear on the
signature pages hereto (the "Lenders"), BANC OF AMERICA SECURITIES LLC, as
Co-Lead Arranger and Joint Book Manager, GOLDMAN SACHS CREDIT PARTNERS
L.P., as Co-Lead Arranger, Joint Book Manager and Syndication Agent, MORGAN
STANLEY SENIOR FUNDING, INC., as Documentation Agent, and BANK OF AMERICA,
N.A., as administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
W I T N E S S E T H
WHEREAS, the Borrower has requested a revolving credit facility of
$865 million in the aggregate; and
WHEREAS, the Lenders have agreed to provide such revolving credit
facility on the terms and conditions set forth herein;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. Capitalized terms used but not otherwise defined
herein (including terms used in the Incorporated Representations, the
Incorporated Covenants, the Incorporated Credit Terms, the Incorporated
Loan Provisions and the Incorporated Loan Terms) shall have the meanings
assigned to such terms in the Existing Credit Agreement as in effect on the
Closing Date. As used herein:
"ABR Loan" means a Loan the rate of interest applicable to which is
based upon the ABR.
"Acquired Person" means any Person that becomes a Subsidiary of the
Parent, the Borrower or any of their respective Subsidiaries.
"Aggregate Tranche A Revolving Committed Amount" shall have the
meaning assigned to such term in Section 2.1(a).
"Aggregate Tranche B Revolving Committed Amount" shall have the
meaning assigned to such term in Section 2.1(b).
"Closing Date" means the date hereof.
"Commitment Period" means the period from and including the Closing
Date to and including the earlier of (i) the Termination Date, and (ii) any
earlier date on which the Commitments shall have been terminated in
accordance with the provisions hereof.
"Commitments" means the Tranche A Revolving Commitments and the
Tranche B Revolving Commitments.
"Committed Amount" means the Tranche A Revolving Committed Amount
and/or the Tranche B Revolving Committed Amount, as appropriate.
"CP Debt Transaction" means, with respect to the Parent, the Borrower
or any of their respective Subsidiaries, any sale, issuance or placement or
incurrence of indebtedness under a commercial paper program.
"Credit Documents" means, collectively, this Agreement, the Notes and
all other related agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto.
"Default" means any event or condition which with notice or lapse of
time, or both, would constitute an Event of Default.
"Defaulting Lender" means any Lender that has failed to make a Loan or
to purchase a participation interest required hereunder, has failed to pay
to the Administrative Agent or any other Lender any amounts owing hereunder
or under the other Credit Documents, or has been deemed insolvent or become
the subject of bankruptcy, reorganization or insolvency proceedings (or
with respect to which a receiver, trustee or similar official has been
appointed).
"Equity Transaction" means with respect to the Parent, the Borrower or
any of their subsidiaries, any issuance or sale of shares of capital stock
or other equity interest, other than an issuance (i) to the Parent or any
of its domestic subsidiaries (including the Borrower), (ii) in connection
with a conversion of debt securities to equity, or (iii) in connection with
exercise by a present or former employee, officer or director (including
any present or former employee, officer or director of any Acquired Person)
under a stock incentive plan, stock option plan or other equity-based
compensation plan or arrangement.
"Eurodollar Loan" means a Loan the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Event of Default" shall have the meaning given such term in Section
6.1.
"Existing Credit Agreement" means that $300 million Revolving Credit
Agreement dated as of February 4, 2000 among the Borrower, the lenders
identified therein (the "Existing Lenders") and Bank of America, N.A., as
Administrative Agent, as in effect on the Closing Date (as amended through
Amendment No. 1 whether such Amendment is then signed and effective)
regardless of whether such Revolving Credit Agreement may have been
terminated or amounts owing thereunder repaid.
"Facility Fee" shall have the meaning assigned to such term in Section
3.5(a).
"Incorporated Covenants" shall have the meaning assigned to such term
in Section 5.1.
"Incorporated Credit Terms" shall have the meaning assigned to such
term in Section 5.1.
"Incorporated Loan Provisions" shall have the meaning assigned to such
term in Section 3.9.
"Incorporated Loan Terms" shall have the meaning assigned to such term
in Section 3.9.
"Incorporated Representations" shall have the meaning assigned to such
term in Section 5.1.
"Lenders" means the Tranche A Revolving Lenders and the Tranche B
Revolving Lenders.
"Loans" or "loans" means the Revolving Loans and the ABR Loans and
Eurodollar Loans comprising the Revolving Loans.
"Notes" means the Tranche A Revolving Notes and/or the Tranche B
Revolving Notes, as appropriate.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Schedule 2.2(a), as required by Section 2.2(a).
"Notice of Extension/Conversion" means a written notice of extension
or conversion in substantially the form of Schedule 3.2, as required by
Section 3.2.
"Other Transaction" means, with respect to the Parent, the Borrower or
any of their respective Subsidiaries, (i) any sale, issuance or placement
or incurrence of indebtedness of the types described in clauses (a) or (b)
of the definition of "Funded Debt", whether or not evidenced by a
promissory note or other written evidence of indebtedness (but excluding,
for purposes hereof, (a) loans and extensions of credit hereunder and under
the Existing Credit Agreement, (b) the incurrence of seller financing
obligations in connection with acquisitions and strategic alliances
permitted under the Existing Credit Agreement in an aggregate principal
amount of up to $50 million, (c) indebtedness of any Acquired Person,
provided that such indebtedness is not incurred in anticipation of the
acquisition of such Acquired Person, and (d) any CP Debt Transaction); and
(ii) any other transaction or series of related transactions (other than
(x) transactions in the ordinary course of business, (y) Equity
Transactions and (z) transactions contemplated by the foregoing clause (i))
pursuant to which the Parent, the Borrower or any of their respective
Subsidiaries receives net cash proceeds in excess of $100 million.
"Requisite Lenders" means, at any time, Lenders having more than fifty
percent (50%) of the Revolving Commitments, or if the Revolving Commitments
have been terminated, Lenders having more than fifty percent (50%) of the
aggregate principal amount of Revolving Loans outstanding (taking into
account participation interests therein); provided that the Revolving
Commitments of and outstanding principal amounts owing to Defaulting
Lenders shall be excluded for purposes of making determinations of
Requisite Lenders.
"Revolving Commitments" means the Tranche A Revolving Commitments and
the Tranche B Revolving Commitments.
"Revolving Loans" means the Tranche A Revolving Loans and/or the
Tranche B Revolving Loans, as appropriate.
"Revolving Obligations" shall have the meaning assigned thereto in
Section 8.2.
"Termination Date" means the date that is nine (9) months after the
Closing Date, or any such later date as to which all of the Lenders may in
their sole discretion by written consent agree.
"Tranche A Revolving Commitment" means, with respect to each Lender,
the commitment of such Lender to make Tranche A Revolving Loans in an
aggregate principal amount at any time outstanding up to such Lender's
Tranche A Revolving Committed Amount.
"Tranche A Revolving Commitment Percentage" means, for each Lender, a
fraction (expressed as a percentage) the numerator of which is the Tranche
A Revolving Committed Amount of such Lender at such time and the
denominator of which is the Aggregate Tranche A Revolving Committed Amount
at such time. The initial Tranche A Revolving Commitment Percentage of each
Lender is set forth in Schedule 2.1.
"Tranche A Revolving Committed Amount" means, collectively, the
aggregate amount of the Tranche A Revolving Commitments of all of the
Lenders, as referenced in Section 2.1(a), and, individually, the amount of
each Lender's Tranche A Revolving Commitment, in each case as such amounts
may be reduced from time to time in accordance with the provisions hereof.
The initial Tranche A Revolving Committed Amount of each Lender is set
forth in Schedule 2.1.
"Tranche A Revolving Lenders" means those Lenders with Tranche A
Revolving Commitments hereunder.
"Tranche A Revolving Loans" shall have the meaning assigned to such
term in Section 2.1(a).
"Tranche A Revolving Notes" means the promissory notes of the Borrower
in favor of each of the Tranche A Revolving Lenders evidencing the Tranche
A Revolving Loans and obligations owing to such Lender hereunder,
individually or collectively, as appropriate, as such promissory notes may
be amended, modified, supplemented, extended, renewed or replaced from time
to time. The Tranche A Revolving Notes shall be in substantially the form
attached as Schedule 2.5.
"Tranche B Revolving Commitment" means, with respect to each Lender,
the commitment of such Lender to make Tranche B Revolving Loans in an
aggregate principal amount at any time outstanding up to such Lender's
Tranche B Revolving Committed Amount.
"Tranche B Revolving Commitment Percentage" means, for each Lender, a
fraction (expressed as a percentage) the numerator of which is the Tranche
B Revolving Committed Amount of such Lender at such time and the
denominator of which is the Aggregate Tranche B Revolving Committed Amount
at such time. The initial Tranche B Revolving Commitment Percentage of each
Lender is set forth in Schedule 2.1.
"Tranche B Revolving Committed Amount" means, collectively, the
aggregate amount of the Tranche B Revolving Commitments of all of the
Lenders, as referenced in Section 2.1(b), and, individually, the amount of
each Lender's Tranche B Revolving Commitment, in each case as such amounts
may be reduced from time to time in accordance with the provisions hereof.
The initial Tranche B Revolving Committed Amount of each Lender is set
forth in Schedule 2.1.
"Tranche B Revolving Lenders" means those Lenders with Tranche B
Revolving Commitments hereunder.
"Tranche B Revolving Loans" shall have the meaning assigned to such
term in Section 2.1(b).
"Tranche B Revolving Notes" means the promissory notes of the Borrower
in favor of each of the Tranche B Revolving Lenders evidencing the Tranche
B Revolving Loans and obligations owing to such Lender hereunder,
individually or collectively, as appropriate, as such promissory notes may
be amended, modified, supplemented, extended, renewed or replaced from time
to time. The Tranche B Revolving Notes shall be in substantially the form
attached as Schedule 2.5.
"Utilization Fee" shall have the meaning assigned to such term in
Section 3.5(b).
1.2 Accounting Terms. Accounting terms used but not otherwise defined
herein shall have the meanings provided under GAAP.
SECTION 2. LOANS
2.1 Revolving Commitments.
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(a) Tranche A Revolving Commitments. During the Commitment
Period, subject to the terms and conditions hereof, each Tranche A
Revolving Lender severally agrees to make certain revolving loans (the
"Tranche A Revolving Loans") to the Borrower in the amount of such
Lender's Tranche A Revolving Commitment Percentage of such Tranche A
Revolving Loans for the purposes hereinafter set forth; provided that
(i) with regard to the Tranche A Revolving Lenders collectively, the
aggregate principal amount of Tranche A Revolving Loans at any time
shall not exceed SIX HUNDRED TWENTY-TWO MILLION EIGHT HUNDRED THOUSAND
DOLLARS ($622,800,000) (as reduced and in effect from time to time,
the "Aggregate Tranche A Revolving Committed Amount") and (ii) with
regard to each Tranche A Revolving Lender individually, such Lender's
Tranche A Revolving Commitment Percentage of Tranche A Revolving Loans
at any time shall not exceed such Lender's Tranche A Revolving
Committed Amount. Tranche A Revolving Loans may consist of ABR Loans
or Eurodollar Loans, or a combination thereof, as the Borrower may
request, and may be repaid and reborrowed in accordance with the
provisions hereof.
(b) Tranche B Revolving Commitments. During the Commitment
Period, subject to the terms and conditions hereof, each Tranche B
Revolving Lender severally agrees to make certain revolving loans (the
"Tranche B Revolving Loans") to the Borrower in the amount of such
Lender's Tranche B Revolving Commitment Percentage of such Tranche B
Revolving Loans for the purposes hereinafter set forth; provided that
(i) with regard to the Tranche B Revolving Lenders collectively, the
aggregate principal amount of Tranche B Revolving Loans at any time
shall not exceed TWO HUNDRED FORTY-TWO MILLION TWO HUNDRED THOUSAND
DOLLARS ($242,200,000) (as reduced and in effect from time to time,
the "Aggregate Tranche B Revolving Committed Amount") and (ii) with
regard to each Tranche B Revolving Lender individually, such Lender's
Tranche B Revolving Commitment Percentage of Tranche B Revolving Loans
at any time shall not exceed such Lender's Tranche B Revolving
Committed Amount. Tranche B Revolving Loans may consist of ABR Loans
or Eurodollar Loans, or a combination thereof, as the Borrower may
request, and may be repaid and reborrowed in accordance with the
provisions hereof.
2.2 Method of Borrowing.
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(a) Notice of Request for Extensions of Credit. The Borrower
shall request a Loan advance by written notice (or telephonic notice
promptly confirmed in writing) to the Administrative Agent by delivery
of a Notice of Borrowing therefor by the Requisite Time as provided
for Committed Loans in the Existing Credit Agreement. A form of Notice
of Borrowing hereunder is attached as Schedule 2.2(a). The
Administrative Agent shall give notice to each Lender promptly upon
receipt of each Notice of Borrowing pursuant to this Section 2.2(a),
the contents thereof and each such Lender's share of any borrowing to
be made pursuant thereto.
(b) Minimum Amounts. Each Revolving Loan shall be in a minimum
principal amount of $15,000,000, in the case of Eurodollar Loans, or
$10,000,000 (or the remaining Revolving Committed Amount, if less), in
the case of ABR Loans, and integral multiples of $1,000,000 in excess
thereof.
(c) Information Not Provided. If in connection with any such
request for a loan advance, the Borrower shall fail to specify (i) an
applicable Interest Period in the case of a Eurodollar Loan, the
Borrower shall be deemed to have requested an Interest Period of one
month, or (ii) the type of Loan requested in the case of Revolving
Loans, the Borrower shall be deemed to have requested an ABR Loan.
(d) Maximum Number of Eurodollar Loans. The Tranche A Revolving
Loans may be comprised of no more than five (5) Eurodollar Loans
outstanding at any time and the Tranche B Revolving Loans may be
comprised of no more than five (5) Eurodollar Loans outstanding at any
time. For purposes hereof, Eurodollar Loans with separate or different
Interest Periods will be considered as separate Eurodollar Loans even
if their Interest Periods expire on the same date.
2.3 Interest. Subject to Section 3.1, the Loans shall bear interest at
a per annum rate payable in arrears on each Applicable Payment Date (which
shall include the Termination Date hereunder), or at such other times as
may be specified herein, as follows:
(a) ABR Loans. During such periods as the Loans shall be
comprised of ABR Loans, the sum of the ABR plus the Applicable
Percentage; and
(b) Eurodollar Loans. During such periods as the Loans shall be
comprised of Eurodollar Loans, the sum of the Eurodollar Rate plus the
Applicable Percentage.
Loans shall bear interest under clause (a) or (b) above as specified
in the Notice of Borrowing for such Loans.
2.4 Repayment. The principal amount of all Revolving Loans shall be
due and payable in full on the Termination Date.
2.5 Notes. The loans and obligations owing hereunder shall be
evidenced by the Notes, substantially in the form of Schedule 2.5.
2.6 Use of Proceeds. Proceeds of the Revolving Loans shall be used
exclusively for (i) the acquisition of GetThere, Inc. and (ii) repayment of
the Bridge Loan Promissory Note dated as of August 4, 2000 executed by the
Borrower in favor of Bank of America, N.A.; provided that after the
occurrence of any CP Debt Transaction, the Tranche A Revolving Commitments
may serve as back-up for the commercial paper program established
thereunder, and thereafter, the proceeds of any subsequent Tranche A
Revolving Loan advance may be used only to service the subject commercial
paper program.
SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS.
3.1 Default Rate. If all or any portion of the principal amount of any
Loan, or interest payable hereunder, or any other amounts payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration
or otherwise), subject to applicable grace periods therefor, such overdue
amount shall bear interest, payable on demand, at the Default Rate.
3.2 Continuations and Conversions. Continuation and Conversions of the
Loans hereunder shall be made on the same basis, and subject to the same
terms and conditions therefor as provided in the Existing Credit Agreement.
A form of Notice of Extension/Conversion is attached hereto as Schedule
3.2.
3.3 Prepayments.
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(a) Voluntary Prepayments. The Revolving Loans may be prepaid in whole
or in part without premium or penalty, except any break-funding indemnity
payments owing in respect thereof, in such minimum amounts as provided in
Section 2.2(b). Subject to the terms and conditions hereof, amounts prepaid
may be reborrowed.
(b) Mandatory Prepayments.
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(i) Committed Amounts. If at any time (i) the aggregate principal
amount of Tranche A Revolving Loans shall exceed the Aggregate Tranche
A Revolving Committed Amount, or (ii) the aggregate principal amount
of Tranche B Revolving Loans shall exceed the Aggregate Tranche B
Revolving Committed Amount, the Borrower shall immediately make
payment on the Revolving Loans in an amount equal to the difference.
(ii) Equity Transactions. The Revolving Loans shall be promptly
prepaid in an amount equal to one hundred percent (100%) of the net
cash proceeds received from any Equity Transaction.
(iii) CP Debt Transactions. The Tranche A Revolving Loans shall
be promptly prepaid in an amount equal to one hundred percent (100%)
of the net cash proceeds received from any CP Debt Transaction.
(iv) Other Transactions. The Revolving Loans shall be promptly
prepaid in an amount equal to (A) one hundred percent (100%) of the
net cash proceeds received from any Other Transaction described in
clause (i) of the definition thereof and (B) one hundred percent
(100%) of the net cash proceeds in excess of $100 million received in
any Other Transaction described in clause (ii) of the definition
thereof.
3.4 Commitment Reductions.
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(a) Voluntary Reduction of Commitments. The Commitments hereunder
may be terminated or permanently reduced in whole or in part on three
(3) Business Days' prior written notice to the Administrative Agent,
provided that any such reductions shall be in a minimum principal
amount of $10,000,000 and integral multiples of $1,000,000 in excess
thereof.
(b) Mandatory Reduction of Commitments. The Revolving Commitments
shall be permanently reduced automatically by an amount equal to any
prepayment required by Section 3.3(b)(ii) in respect of Equity
Transactions or Section 3.3(b)(iv) in respect of Other Transactions.
3.5 Fees.
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(a) Facility Fee. The Borrower shall pay to the Administrative
Agent for the account of each Lender a facility fee ("Facility Fee")
equal to the Applicable Percentage times the actual daily amount of
its Revolving Commitment, regardless of usage. The Facility Fee shall
accrue at all times from the Closing Date until the Termination Date
and shall be payable quarterly in arrears on each Applicable Payment
Date. The Facility Fee shall be calculated quarterly in arrears, and
if there is any change in the Applicable Percentage during any
quarter, the actual daily amount shall be computed and multiplied by
the Applicable Percentage separately for each period during such
quarter that such Applicable Percentage was in effect. The Facility
Fee shall accrue at all times, including at any time during which one
or more conditions in Section 4 of the Existing Credit Agreement are
not met.
(b) Utilization Fee. During any quarter that the actual sum of
(i) Outstanding Obligations of all the Lenders under the Existing
Credit Agreement and (ii) Revolving Loans outstanding hereunder on any
day shall exceed fifty percent (50%) of the aggregate amount of the
Commitments under the Existing Credit Agreement, the Borrower shall
pay to the Administrative Agent for the account of each Lender a
utilization fee ("Utilization Fee") equal to the Applicable Percentage
times the average daily Revolving Loans outstanding during such
quarter. The Utilization Fee shall accrue at all times from the
Closing Date until the Termination Date and shall be payable quarterly
in arrears on each Applicable Payment Date. The Utilization Fee shall
be calculated quarterly in arrears, and if there is any change in the
Applicable Percentage during any quarter, the actual daily amount
shall be computed and multiplied by the Applicable Percentage
separately for each period during such quarter that such Applicable
Percentage was in effect. The Utilization Fee shall accrue at all
times, including at any time during which one or more conditions in
Section 4 of the Existing Credit Agreement are not met.
(c) Administrative Agent's Fees. The Borrower agrees to pay all
fees and amounts, if any, owing to the Administrative Agent.
3.6 Pro Rata Treatment. Except to the extent otherwise provided
herein:
(a) Loans. Each advance of a Tranche A Revolving Loan and each
payment of principal, interest and fees on or in respect thereof, and
each Conversion or Continuation of a Tranche A Revolving Loan, shall
be allocated pro rata among the Tranche A Revolving Lenders in
accordance with their respective Tranche A Revolving Commitment
Percentages. Each advance of a Tranche B Revolving Loan and each
payment of principal, interest and fees on or in respect thereof, and
each Conversion or Continuation of a Tranche B Revolving Loan, shall
be allocated pro rata among the Tranche B Revolving Lenders in
accordance with their respective Tranche B Revolving Commitment
Percentages. Each loan advance (other than in respect of a CP Debt
Transaction), each loan repayment or prepayment (other than in respect
of a CP Debt Transaction) and each commitment reduction (other than as
set forth in Section 3.3(b)(iii) in respect of a CP Debt Transaction)
hereunder shall be made ratably under the Tranche A Revolving Loan
Commitments and the Tranche B Revolving Loan Commitments. The
Utilization Fee shall be shared by the Lenders ratably based on the
average daily principal amount of their respective Commitments during
the applicable period.
(b) Advances. Unless the Administrative Agent shall have been
notified in writing by any Lender prior to a borrowing that such
Lender will not make the amount that would constitute its ratable
share of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Lender is making such amount
available to the Administrative Agent, and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower
a corresponding amount as provided in Section 2.10 of the Incorporated
Loan Provisions. If such amount is not made available to the
Administrative Agent by such Lender within the time period specified
therefor hereunder, such Lender shall pay to the Administrative Agent,
on demand, such amount with interest thereon at the rates provided in
Section 2.10 of the Incorporated Loan Provisions for the period until
such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error.
3.7 Sharing of Payments. The Lenders agree among themselves that, in
the event that any Lender shall obtain payment in respect of any loan or
any other obligation owing to such Lender under this Agreement through the
exercise of a right of setoff, banker's lien or counterclaim, or pursuant
to a secured claim under Section 506 of Title 11 of the United States Code
or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable bankruptcy, insolvency
or other similar law or otherwise, or by any other means, in excess of its
pro rata share of such payment as provided for in this Agreement, such
Lender shall promptly purchase from the other Lenders a participation in
such Loans and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all
Lenders share such payment in accordance with their respective ratable
shares as provided for in this Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker's lien, counterclaim or other event
as aforesaid shall be rescinded or must otherwise be restored, each Lender
which shall have shared the benefit of such payment shall, by repurchase of
a participation theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect
thereto) to each Lender whose payment shall have been rescinded or
otherwise restored. The Borrower agrees that any Lender so purchasing such
a participation may, to the fullest extent permitted by law, exercise all
rights of payment, including setoff, banker's lien or counterclaim, with
respect to such participation as fully as if such Lender were a holder of
such Loan or other obligation in the amount of such participation; provided
that no Lender purchasing such a participation shall be entitled to receive
any greater amount pursuant to this Section than the transferor Lender
would have been entitled to receive in respect of the amount of
participation transferred had no such transfer occurred. Except as
otherwise expressly provided in this Agreement, if any Lender or the
Administrative Agent shall fail to remit to the Administrative Agent or any
other Lender an amount payable by such Lender or the Administrative Agent
to the Administrative Agent or such other Lender pursuant to this Agreement
on the date when such amount is due, such payments shall be made (by the
Administrative Agent or Lender) together with interest thereon for each
date from the date such amount is due until the date such amount is paid to
the Administrative Agent or such other Lender at a rate per annum equal to
the ABR. If under any applicable bankruptcy, insolvency or other similar
law, any Lender receives a secured claim in lieu of a setoff to which this
Section 3.7 applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Lenders under this Section 3.7 to share in the benefits of
any recovery on such secured claim.
3.8 Payments. Payments shall be made hereunder in U.S. dollars in
immediately available funds, without offset, deduction, counterclaim or
withholding of any kind at the offices of the Administrative Agent.
3.9 Incorporation of Loan Provisions. The provisions of Sections 2.09,
2.10, 2.11, and 3.01 through 3.07, inclusive, of the Existing Credit
Agreement as in effect on the Closing Date (the "Incorporated Loan
Provisions") and all other relevant provisions of the Existing Credit
Agreement related thereto, including without limitation the defined terms
contained in the Existing Credit Agreement which are used in the
Incorporated Loan Provisions (the "Incorporated Loan Terms") are
incorporated herein by reference to the same extent and with the same
effect as if set forth fully herein, and shall inure to the benefit of the
Administrative Agent and the Lenders, without giving effect to any waiver,
amendment, modification or replacement of the Existing Credit Agreement or
any term or provision of the Incorporated Loan Provisions or the
Incorporated Loan Terms occurring subsequent to the Closing Date, except to
the extent otherwise specifically provided in the following provisions of
this Section 3.9. The Borrower agrees that the Incorporated Loan Provisions
shall be as binding on the Borrower as if set forth fully herein; provided
that (i) the Incorporated Loan Provisions shall run in favor of the
Administrative Agent and the Lenders hereunder (rather than the
Administrative Agent and the Existing Lenders under the Existing Credit
Agreement as literally provided in the Existing Credit Agreement), (ii)
capitalized terms used in the Incorporated Loan Provisions and the
Incorporated Loan Terms that are defined in both the Existing Credit
Agreement and this Agreement shall have the meanings assigned to such terms
in this Agreement, (iii) in the event of the amendment or modification of
(A) any of the provisions of the Incorporated Loan Provisions or (B) any of
the Incorporated Loan Terms, the Incorporated Loan Provisions or the
Incorporated Loan Terms, as applicable, shall be as in effect immediately
prior to such amendment or modification, unless the requisite Lenders
hereunder consent to such amendment or modification in accordance with the
terms hereof, and (iv) in the event that the Existing Credit Agreement
shall be refinanced, repaid, terminated or replaced by another credit
agreement, the Incorporated Loan Provisions and the Incorporated Loan Terms
shall be as in effect immediately prior to such refinancing, repayment,
termination or replacement.
SECTION 4. CONDITIONS
4.1 Conditions to Closing. This Agreement shall become effective upon
the satisfaction of the following conditions precedent:
(a) Execution of Credit Documents. Receipt by the Administrative
Agent of (i) multiple counterparts of this Agreement duly executed by
the Borrower and each Lender and (ii) Notes for each Lender duly
executed by the Borrower, conforming to the requirements of this
Agreement and in form and substance satisfactory to the Administrative
Agent and the Lenders.
(b) Legal Opinions. Receipt by the Administrative Agent of
multiple counterparts of opinions of counsel for the Borrower relating
to the Credit Documents and the transactions contemplated herein, in
form and substance satisfactory to the Administrative Agent and the
Lenders.
(c) Corporate Documents. Receipt by the Administrative Agent of
the following (or their equivalent) for the Borrower in form and
substance satisfactory to the Administrative Agent and the Lenders:
(i) Articles of Incorporation. Copies of the articles of
incorporation, organization or charter documents certified to be
true and complete as of a recent date by the appropriate
Governmental Authority of the state of its incorporation.
(ii) Resolutions. Copies of resolutions of the board of
directors approving and adopting the respective Credit Documents,
the transactions contemplated therein and authorizing execution
and delivery thereof, certified by a secretary or assistant
secretary as of the Closing Date to be true and correct and in
force and effect as of such date.
(iii) Bylaws. Copies of the bylaws, operating agreement or
equivalent, certified by a secretary or assistant secretary as of
the Closing Date to be true and correct and in force and effect
as of such date.
(iv) Good Standing. Certificates of good standing, existence
or its equivalent certified as of a recent date by the
appropriate governmental authorities of the state of
incorporation and each other state in which the failure to so
qualify and be in good standing would be reasonably likely to
have a material adverse effect on the business or operations in
such state.
(v) Officer's Certificate. An officer's certificate dated as
of the Closing Date substantially in the form of Schedule
4.1(c)(v) with appropriate insertions and attachments.
(d) Fees and Expenses. Receipt by the Administrative Agent of all
fees and expenses owing to the Administrative Agent (including,
without limitation, legal fees and disbursements invoiced on or before
the Closing Date) and the Lenders which are payable at closing.
Notwithstanding the effective date of this Agreement, in no event
shall the initial funding hereunder occur prior to October 11, 2000.
4.2 Conditions to other Revolving Loan Advances. The obligation of
each Lender to make each Revolving Loan advance hereunder is subject to the
satisfaction of the following conditions precedent on the date of making
each such advance:
(a) Representations and Warranties. The representations and
warranties made by the Borrower herein or in any other Credit
Documents (including the Incorporated Representations) or which are
contained in any certificate furnished at any time under or in
connection herewith shall be true and correct in all material respects
on and as of the date of the advance as if made on and as of such date
(except for those which expressly relate to an earlier date); provided
that, following the acquisition of GetThere, Inc., the representations
and warranties made in respect of GetThere, Inc. and its Subsidiaries
shall be made to the best of the Borrower's knowledge.
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such date or after
giving effect to the Revolving Loan advance to be made on such date.
Each request for a Revolving Loan advance (including for purposes
hereof Conversions and Continuations) and each acceptance of a Revolving
Loan advance hereunder shall be deemed to constitute a representation and
warranty of that the foregoing conditions have been satisfied as of the
date of advance.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Incorporation of Representations and Covenants. The
representations and warranties contained in Section 5 of the Existing
Credit Agreement as in effect on the Closing Date (the "Incorporated
Representations"), the affirmative and negative covenants contained in
Sections 6 and 7, respectively, of the Existing Credit Agreement as in
effect on the Closing Date (the "Incorporated Covenants") and all other
relevant provisions of the Existing Credit Agreement related thereto,
including without limitation the defined terms contained in the Existing
Credit Agreement which are used in the Incorporated Representations and the
Incorporated Covenants (the "Incorporated Credit Terms") are incorporated
herein by reference to the same extent and with the same effect as if set
forth fully herein (except as the schedules referenced in the Incorporated
Representations, the Incorporated Covenants and the Incorporated Credit
Terms may be modified or supplemented as set forth on Schedule 5.1 attached
hereto), and shall inure to the benefit of the Administrative Agent and the
Lenders, without giving effect to any waiver, amendment, modification or
replacement of the Existing Credit Agreement or any term or provision of
the Incorporated Representations and Warranties, the Incorporated Covenants
or the Incorporated Credit Terms occurring subsequent to the Closing Date,
except to the extent otherwise specifically provided in the following
provisions of this Section 5.1. The Borrower affirms and represents and
warrants to the Administrative Agent and the Lenders that the Incorporated
Representations are true and correct in all material respects as of the
date hereof (except for those which expressly relate to an earlier date and
those which are untrue solely as a result of a change permitted by the
Existing Credit Agreement prior to the Closing Date) and covenant and agree
that the Incorporated Covenants shall be as binding on the Borrower as if
set forth fully herein; provided that (i) the Incorporated Representations
and the Incorporated Covenants shall run in favor of the Administrative
Agent and the Lenders hereunder (rather than the Administrative Agent and
the Existing Lenders under the Existing Credit Agreement as literally
provided in the Existing Credit Agreement), (ii) capitalized terms used in
the Incorporated Representations, the Incorporated Covenants and the
Incorporated Credit Terms that are defined in both the Existing Credit
Agreement and this Agreement shall have the meanings assigned to such terms
in this Agreement, (iii) in the event of the amendment or modification of
(A) any of the representations and warranties contained in Section 5 of the
Existing Credit Agreement, (B) any of the affirmative and negative
covenants contained in Sections 6 and 7 of the Existing Credit Agreement or
(C) any of the Incorporated Credit Terms, the Incorporated Representations,
the Incorporated Covenants or the Incorporated Credit Terms, as applicable,
shall be as in effect immediately prior to such amendment or modification,
unless the Requisite Lenders hereunder consent to such amendment or
modification in accordance with the terms hereof, and (iv) in the event
that the Existing Credit Agreement shall be refinanced, repaid, terminated
or replaced by another credit agreement, the Incorporated Representations,
the Incorporated Covenants and the Incorporated Credit Terms shall be as in
effect immediately prior to such refinancing, repayment, termination or
replacement.
SECTION 6. EVENTS OF DEFAULT
6.1 Event of Default. Each of the following shall constitute an "Event
of Default" hereunder:
(a) the Borrower shall fail to pay principal on any Revolving
Loans (other than fees) as and on the date when due; or
(b) the Borrower shall fail to pay any interest on any Revolving
Loans, or any Facility Fee or Utilization Fee due hereunder within
three (3) Business Days after the date due; or fails to pay any other
fees or amount payable to the Administrative Agent or any Lender under
any Credit Document within five (5) days after the date due; or
(c) (i) the Borrower shall fail to observe or perform any term,
covenant, obligation or condition of the Borrower under this Agreement
other than those set forth in Sections 6.1(a) or (b) hereof, and such
failure shall continue for thirty (30) days (except for the covenants
set forth in Sections 7.01, 7.03, 7.04 and 7.05 of the Incorporated
Covenants for which there shall be no such grace period) after notice
thereof to the Borrower, or (ii) any representation or warranty made
by the Borrower given in connection herewith, including the
Incorporated Representations, or in any document, certificate or
financial or other statement delivered in connection herewith or
therewith shall be false or inaccurate in any material way when made;
or
(d) the occurrence of any other event or condition which shall
constitute an Event of Default under the Existing Credit Agreement
(whether or not waived).
6.2 Remedies. Upon the occurrence of an Event of Default, and at any
time thereafter, the Administrative Agent shall, upon the request and
direction of the Requisite Lenders, (i) terminate the commitments hereunder
and declare the unpaid principal of, and any accrued interest owing on, the
loans and all other indebtedness or obligations owing hereunder or under
any of the other Credit Documents or in connection herewith or therewith,
immediately due and payable, whereupon the same shall be immediately due
and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower, and (ii) enforce any
other rights and interests available under the Credit Documents or at law,
including rights of set off. Notwithstanding the foregoing, in the case of
an Event of Default in respect of bankruptcy or insolvency described in
clauses (f), (g) or (h) of Section 8.01 of the Existing Credit Agreement,
the commitments hereunder shall immediately and automatically terminate and
the Revolving Loans and all accrued interest and all other indebtedness and
other amounts owing hereunder or under any of the other Credit Documents
owing to the Administrative Agent and the Lenders shall become immediately
due and payable without presentment, demand, protest or the giving of any
notice or other action by the Administrative Agent and the Lenders, all of
which are hereby waived by the Borrower.
SECTION 7. AGENCY PROVISIONS
7.1 Appointment and Authorization of Administrative Agent. Each Lender
hereby irrevocably (subject to Section 7.9) appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under
the provisions of this Agreement and each other Credit Document and to
exercise such powers and perform such duties as are expressly delegated to
it by the terms of this Agreement or any other Credit Document, together
with such powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in any
other Credit Document, the Administrative Agent shall not have any duties
or responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any
other Credit Document or otherwise exist against the Administrative Agent.
Without limiting the generality of the foregoing sentence, the use of the
term "agent" in this Agreement with reference to the Administrative Agent
is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead,
such term is used merely as a matter of market custom, and is intended to
create or reflect only an administrative relationship between independent
contracting parties.
7.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement or any other Credit Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence
of gross negligence or willful misconduct.
7.3 Liability of Administrative Agent. No Administrative Agent-Related
Person shall (i) be liable for any action taken or omitted to be taken by
any of them under or in connection with this Agreement or any other Credit
Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct in connection with its duties expressly
set forth herein), or (ii) be responsible in any manner to any Lender for
any recital, statement, representation or warranty made by the Borrower or
any officer thereof, contained in this Agreement or in any other Credit
Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or any other Credit Document,
or the validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Credit Document, or for any failure of the
Borrower or any other party to any Credit Document to perform its
obligations hereunder or thereunder. No Administrative Agent-Related Person
shall be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Credit Document, or to inspect
the properties, books or records of the Borrower or any Subsidiary or
Affiliate thereof.
7.4 Reliance by Administrative Agent. (a) The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon
any writing, communication, signature, resolution, representation, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons, and upon advice and statements of legal counsel
(including counsel to the Borrower), independent accountants and other
experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under
any Credit Document unless it shall first receive such advice or
concurrence of Requisite Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by Lenders
against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Credit Document in
accordance with a request or consent of Requisite Lenders or all Lenders,
if required hereunder, and such request and any action taken or failure to
act pursuant thereto shall be binding upon all of Lenders. Where this
Agreement expressly permits or prohibits an action unless Requisite Lenders
otherwise determine, and in all other instances, the Administrative Agent
may, but shall not be required to, initiate any solicitation for the
consent or a vote of Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.1, each Lender shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
either sent by the Administrative Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Lender.
7.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the
account of Lenders, unless the Administrative Agent shall have received
written notice from a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is
a "notice of default". The Administrative Agent will notify Lenders of its
receipt of any such notice. The Administrative Agent shall take such action
with respect to such Default or Event of Default as may be directed by
Requisite Lenders in accordance with Section 6; provided, however, that
unless and until the Administrative Agent has received any such direction,
the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable or in the best interest of
Lenders.
7.6 Credit Decision; Disclosure of Information by Administrative
Agent. Each Lender acknowledges that no Administrative Agent-Related Person
has made any representation or warranty to it, and that no act by the
Administrative Agent hereinafter taken, including any consent to and
acceptance of any assignment or review of the affairs of the Borrower or
any of its Subsidiaries or Affiliates, shall be deemed to constitute any
representation or warranty by any Administrative Agent-Related Person to
any Lender as to any matter, including whether any Administrative
Agent-Related Persons have disclosed material information in their
possession. Each Lender, including any Lender by assignment, represents to
the Administrative Agent that it has, independently and without reliance
upon any Administrative Agent-Related Person and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower and its
Subsidiaries and Affiliates, and all applicable bank regulatory laws
relating to the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Borrower
hereunder. Each Lender also represents that it will, independently and
without reliance upon any Administrative Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Credit
Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and
other condition and creditworthiness of the Borrower and its Subsidiaries
and Affiliates. Except for notices, reports and other documents expressly
required to be furnished to Lenders by the Administrative Agent herein, the
Administrative Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Borrower or any of its Subsidiaries or Affiliates
which may come into the possession of any Administrative Agent-Related
Person.
7.7 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, Lenders shall indemnify
upon demand each Administrative Agent-Related Person (to the extent not
reimbursed by or on behalf of the Borrower and without limiting the
obligation of the Borrower to do so), pro rata, and hold harmless each
Administrative Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that no Lender
shall be liable for the payment to any Administrative Agent-Related Person
of any portion of such Indemnified Liabilities resulting from such Person's
gross negligence or willful misconduct; provided, however, that no action
taken in accordance with the directions of Requisite Lenders shall be
deemed to constitute gross negligence or willful misconduct for purposes of
this Section. Without limitation of the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice
in respect of rights or responsibilities under, this Agreement, any other
Credit Document, or any document contemplated by or referred to herein, to
the extent that the Administrative Agent is not reimbursed for such
expenses by or on behalf of the Borrower. The undertaking in this Section
shall survive the payment of all Obligations hereunder and the resignation
or replacement of the Administrative Agent.
7.8 Administrative Agent in Individual Capacity. Bank of America, N.A.
and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or
other business with the Borrower and its Subsidiaries and Affiliates as
though Bank of America were not the Administrative Agent hereunder and
without notice to or consent of Lenders. Lenders acknowledge that, pursuant
to such activities, Bank of America or its Affiliates may receive
information regarding the Borrower or its Affiliates (including information
that may be subject to confidentiality obligations in favor of the Borrower
or such Affiliate) and acknowledge that the Administrative Agent shall be
under no obligation to provide such information to them. With respect to
its Loans, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were
not the Administrative Agent.
7.9 Successor Administrative Agent. The Administrative Agent may, and
at the request of Requisite Lenders shall, resign as the Administrative
Agent upon 30 days' notice to Lenders and the Borrower. If the
Administrative Agent resigns under this Agreement, Requisite Lenders shall
appoint from among Lenders a successor administrative agent for Lenders
which successor administrative agent shall be consented to by the Borrower
at all times other than during the existence of an Event of Default (which
approval of the Borrower shall not be unreasonably withheld or delayed). If
no successor administrative agent is appointed prior to the effective date
of the resignation of the Administrative Agent, the Administrative Agent
may appoint, after consulting with Lenders and the Borrower, a successor
administrative agent from among Lenders. Upon the acceptance of its
appointment as successor administrative agent hereunder, such successor
administrative agent shall succeed to all the rights, powers and duties of
the retiring Administrative Agent and the term "Administrative Agent" shall
mean such successor administrative agent and the retiring Administrative
Agent's appointment, powers and duties as the Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder
as the Administrative Agent, the provisions of this Section 7 and Section 8
shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was the Administrative Agent under this Agreement. If no
successor administrative agent has accepted appointment as the
Administrative Agent by the date which is thirty (30) days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective and Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as Requisite Lenders appoint a
successor agent as provided for above.
7.10 Co-Lead Arranger, etc. None of Lenders identified on the facing
page or signature pages of this Agreement as a "co-lead arranger", "joint
book manager", "lead manager", "syndication agent" or "documentation agent"
shall have any right, power, obligation, liability, responsibility or duty
under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of Lenders so identified as a "co-lead
arranger", "joint book manager", "lead manager", "syndication agent" or
"documentation agent" shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of Lenders so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
SECTION 8. MISCELLANEOUS
8.1 Notices. All notices required or permitted to be given under any
Credit Document shall be in writing. Notices may be served by certified or
registered mail, postage paid with return receipt requested; by private
courier, prepaid; by telex, facsimile, or other telecommunication device
capable of transmitting or creating a written record; or personally. Mailed
notices shall be deemed delivered five (5) days after mailing, properly
addressed. Couriered notices shall be deemed delivered when delivered as
addressed, or if the addressee refused delivery, when presented for
delivery notwithstanding such refusal. Telex or telecommunicated notices
shall be deemed delivered when receipt is either confirmed by confirming
transmission equipment or acknowledged by the addressee or its office.
Personal delivery shall be effective when accomplished.
Unless a party changes its address by giving notice to the other party
as provided herein, notices shall be delivered to the parties at the
addresses set forth on Schedule 8.1 hereof.
From time to time any party may designate additional parties and/or
another address for notice purposes by notice to each of the other parties
hereto. Each notice hereunder shall be effective upon receipt or refusal
thereof.
8.2 Right of Set-Off. In addition to any rights and remedies of the
Administrative Agent and Lenders or any assignee or participant of any
Lender or any Affiliate thereof (each, a "Proceeding Party") provided by
law, upon the occurrence and during the continuance of any Event of
Default, each Proceeding Party is authorized at any time and from time to
time, without prior notice to the Borrower, any such notice being waived by
the Borrower to the fullest extent permitted by law, to proceed directly,
by right of set-off, banker's lien, or otherwise, against any assets of the
Borrower which may be in the hands of such Proceeding Party (including all
general or special, time or demand, provisional or other deposits and other
indebtedness owing by such Proceeding Party to or for the credit or the
account of the Borrower) and apply such assets against the Revolving Loans
and all other amounts owed hereunder and under the other Credit Documents
(the "Revolving Obligations"), irrespective of whether such Proceeding
Party shall have made any demand therefor and although such Revolving
Obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and
application made by such Lender; provided, however, that the failure to
give such notice shall not affect the validity of such set-off and
application.
8.3 Benefit of Agreement.
--------------------
(a) This Agreement and the other Credit Documents to which the
Borrower is a party will be binding upon and inure to the benefit of
the Borrower, the Administrative Agent, Lenders and their respective
successors and assigns, except that, the Borrower may not assign its
rights and obligations hereunder or thereunder or any interest herein
or therein without the prior written consent of all Lenders and any
such attempted assignment shall be void. Any Lender may at any time
pledge its Note or any other instrument evidencing its rights as a
Lender under this Agreement to a Federal Reserve Bank, but no such
pledge shall release such Lender from its obligations hereunder or
grant to such Federal Reserve Bank the rights of a Lender hereunder
absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may
assign to one or more Eligible Assignees all or any portion of its
Commitment and/or Revolving Loans; provided that (i) such assignment,
if not to a Lender or an Affiliate of the assigning Lender, shall be
consented to by the Borrower at all times other than during the
existence of a Default or Event of Default and by the Administrative
Agent (which approval of the Borrower and the Administrative Agent
shall not be unreasonably withheld or delayed), (ii) a copy of a duly
signed and completed Assignment and Acceptance, in the form specified
in the Existing Credit Agreement, shall be delivered to the
Administrative Agent and the Borrower, (iii) except in the case of an
assignment (A) to an Affiliate of the assigning Lender or to another
Lender or (B) of the entire remaining Commitment of the assigning
Lender, the portion of the Commitment assigned shall be a minimum
aggregate principal amount of $10,000,000 and integral multiples
thereof, and shall be of a constant and not varying percentage of the
assigning Lender's rights and obligations under the respective Loans
and Commitments relating thereto subject to the assignment, and (iv)
the effective date of any such assignment shall be as specified in the
Assignment and Acceptance, but not earlier than the date which is five
Business Days after the date the Administrative Agent has received the
Assignment and Acceptance. Upon obtaining any consent required as set
forth in the prior sentence and payment of the requisite fee described
below, the assignee named therein shall be a Lender for all purposes
of this Agreement, with the Loans and Commitments therein set forth
and, to the extent of such assignment, the assigning Lender shall be
released from its further obligations under this Agreement. The
Borrower agrees that it shall execute and deliver upon request
(against delivery by the assigning Lender to the Borrower of any Note)
to such assignee Lender, one or more Notes evidencing such assignee
Lender's Loans, and to the assigning Lender, if requested, one or more
Notes evidencing Loans under any Commitment retained by the assigning
Lender. The Administrative Agent's consent to any assignment shall not
be deemed to constitute any representation or warranty by any
Administrative Agent-Related Person as to any matter. For purposes
hereof, each mutual fund that is an Affiliate of a Lender shall be
deemed to be a single Eligible Assignee, whether or not such fund is
managed by the same fund manager as other mutual funds that are
Affiliates of the same Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Schedule 8.1 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Commitment of, and
principal amount of the advances owing to, each Lender from time to
time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower,
the Administrative Agent and the Lenders shall treat each Person whose
name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(d) After receipt of a completed Assignment and Acceptance, and
receipt of an assignment fee of $3,500 (including in the case of
assignments to Affiliates of assigning Lenders), the Administrative
Agent shall, promptly following the effective date thereof, provide to
the Borrower and Lenders a revised Schedule 8.1 giving effect thereto.
(e) Each Lender may from time to time, without the consent of any
other Person, grant participations to one or more other Person
(including another Lender) all or any portion of its Commitment and/or
Revolving Loans; provided, however, that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or
other financial institutions shall not be a Lender hereunder for any
purpose except, if the participation agreement so provides, for the
purposes of Section 3 (but only to the extent that the cost of such
benefits to the Borrower does not exceed the cost which the Borrower
would have incurred in respect of such Lender absent the
participation) and subject to Sections 3.7 and 8.2, (iv) the Borrower,
the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, (v) the participation
agreement shall not restrict an increase in the combined Commitments
or in the granting Lender's Commitment, so long as the amount of the
participation interest is not increased, and (vi) the consent of the
holder of such participation interest shall not be required for
amendments or waivers of provisions of the Credit Documents; provided,
however, that the assigning Lender may, in any agreement with a
participant, give such participant the right to consent to any matter
which (A) extends the Termination Date or any other date upon which
any payment of money is due to such participant, (B) reduces the rate
of interest owing to such participant, any fee or any other monetary
amount owing to such participant, or (C) reduces the amount of any
installment of principal owing to such participant. Any Lender that
sells a participation to any Person that is not a U.S. Person shall
include in its participation agreement with such Person a covenant by
such Person that such Person will comply with the provisions of
Section 3.01(c) of the Existing Credit Agreement as if such Person
were a Lender and provide that the Administrative Agent and the
Borrower shall be third party beneficiaries of such covenant.
8.4 No Waiver. No failure or delay on the part of the Administrative
Agent or the Lenders in exercising any right, power or privilege hereunder
or under any other Credit Document and no course of dealing between the
Administrative Agent or the Lenders, on the one hand, and the Borrower, on
the other hand, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any
other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder.
The rights and remedies provided herein are cumulative and not exclusive of
any rights or remedies which the Administrative Agent and the Lenders would
otherwise have.
8.5 Payment of Expenses. The Borrower agrees (a) to pay or reimburse
the Administrative Agent and each Lender party hereto on the Closing Date
for all reasonable costs and expenses incurred in connection with the
development, preparation, negotiation and execution of the Credit
Documents, and the development, preparation, negotiation and execution of
any amendment, waiver, consent, supplement or modification to, any Credit
Documents, and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs, and (b) to
pay or reimburse the Administrative Agent and each Lender for all
reasonable costs and expenses incurred in connection with any refinancing,
restructuring, reorganization (including a bankruptcy reorganization) and
enforcement or attempted enforcement, or preservation of any rights under
any Credit Documents, and any other documents prepared in connection
herewith or therewith, or in connection with any refinancing, or
restructuring of any such documents in the nature of a "workout" or of any
insolvency or bankruptcy proceeding, including Attorney Costs. The
foregoing costs and expenses shall include all search, filing, recording,
title insurance and appraisal charges and fees and taxes related thereto,
and other out-of-pocket expenses incurred by the Administrative Agent and
the cost of independent public accountants and other outside experts
retained by the Administrative Agent or any Lender. The agreements in this
Section shall survive repayment of all Revolving Obligations.
8.6 Amendments and Waivers. This Agreement and the other Credit
Documents and the provisions hereunder and thereunder may not be amended,
modified, waived or terminated except with the prior written consent of the
Borrower and the Requisite Lenders, provided that no such amendment,
modification or waiver shall (i) reduce the amount, or extend the maturity
of any Note or any installment thereon, or reduce the rate of interest or
extend the time of payment of interest thereon, or reduce any fee payable
to any Lender hereunder, or change the duration or amount of any Lender's
commitment hereunder, in each case without the written consent of each
Lender directly affected thereby, (ii) amend, modify or waive any provision
of (A) this Section, (B) the definition of "Requisite Lenders", or (C)
Sections 3.3(b)(ii) and 3.3(b)(iv), in each case without the written
consent of all of the Lenders, except as expressly provided herein, (iii)
consent to the assignment or transfer of the rights and obligations of the
Borrower hereunder, in each case without the written consent of all of the
Lenders, except as expressly provided herein, or (iv) amend, modify or
waive any provision of Section 7 without the prior written consent of the
Administrative Agent.
8.7 Usury Savings Provision. IT IS THE INTENT OF THE PARTIES HERETO TO
CONFORM TO AND CONTRACT IN STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM
TIME TO TIME IN EFFECT. ANY SUCH PAYMENTS SO CHARACTERIZED AS INTEREST MAY
BE REFERRED TO HEREIN AS "INTEREST". ALL AGREEMENTS AMONG THE PARTIES
HERETO ARE HEREBY LIMITED BY THE PROVISIONS OF THIS PARAGRAPH WHICH SHALL
OVERRIDE AND CONTROL ALL SUCH AGREEMENTS, WHETHER NOW EXISTING OR HEREAFTER
ARISING AND WHETHER WRITTEN OR ORAL. IN NO WAY, NOR IN ANY EVENT OR
CONTINGENCY (INCLUDING WITHOUT LIMITATION PREPAYMENT OR ACCELERATION OF THE
TERMINATION DATE OR THE MATURITY OF ANY REVOLVING OBLIGATION), SHALL ANY
INTEREST TAKEN, RESERVED, CONTRACTED FOR, CHARGED OR RECEIVED UNDER THIS
AGREEMENT OR OTHERWISE, EXCEED THE MAXIMUM NONUSURIOUS AMOUNT PERMISSIBLE
UNDER APPLICABLE LAW. IF, FROM ANY POSSIBLE CONSTRUCTION OF ANY OF THE
CREDIT DOCUMENTS OR ANY OTHER DOCUMENT OR AGREEMENT, INTEREST WOULD
OTHERWISE BE PAYABLE IN EXCESS OF THE MAXIMUM NONUSURIOUS AMOUNT, ANY SUCH
CONSTRUCTION SHALL BE SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH AND SUCH
AMOUNTS UNDER SUCH DOCUMENTS OR AGREEMENTS SHALL BE AUTOMATICALLY REDUCED
TO THE MAXIMUM NONUSURIOUS AMOUNT PERMITTED UNDER APPLICABLE LAW, WITHOUT
THE NECESSITY OF EXECUTION OF ANY AMENDMENT OR NEW DOCUMENT OR AGREEMENT.
IF THE ADMINISTRATIVE AGENT OR ANY LENDER SHALL EVER RECEIVE ANYTHING OF
VALUE WHICH IS CHARACTERIZED AS INTEREST WITH RESPECT TO THE REVOLVING
OBLIGATIONS OWED HEREUNDER OR UNDER APPLICABLE LAW AND WHICH WOULD, APART
FROM THIS PROVISION, BE IN EXCESS OF THE MAXIMUM LAWFUL AMOUNT, AN AMOUNT
EQUAL TO THE AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE INTEREST SHALL, WITHOUT
PENALTY, BE APPLIED TO THE REDUCTION OF THE COMPONENT OF PAYMENTS DEEMED TO
BE PRINCIPAL AND NOT TO THE PAYMENT OF INTEREST, OR REFUNDED TO THE
BORROWER OR ANY OTHER PAYOR THEREOF, IF AND TO THE EXTENT SUCH AMOUNT WHICH
WOULD HAVE BEEN EXCESSIVE EXCEEDS THE COMPONENT OF PAYMENTS DEEMED TO BE
PRINCIPAL. THE RIGHT TO DEMAND PAYMENT OF ANY AMOUNTS EVIDENCED BY ANY OF
THE CREDIT DOCUMENTS DOES NOT INCLUDE THE RIGHT TO RECEIVE ANY INTEREST
WHICH HAS NOT OTHERWISE ACCRUED ON THE DATE OF SUCH DEMAND, AND NEITHER THE
ADMINISTRATIVE AGENT NOR ANY LENDER INTENDS TO CHARGE OR RECEIVE ANY
UNEARNED INTEREST IN THE EVENT OF SUCH DEMAND. ALL INTEREST PAID OR AGREED
TO BE PAID TO THE ADMINISTRATIVE AGENT OR ANY LENDER SHALL, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, BE AMORTIZED, PRORATED, ALLOCATED AND SPREAD
THROUGHOUT THE FULL STATED TERM (INCLUDING WITHOUT LIMITATION ANY RENEWAL
OR EXTENSION) OF THIS AGREEMENT SO THAT THE AMOUNT OF INTEREST ON ACCOUNT
OF SUCH PAYMENT DOES NOT EXCEED THE MAXIMUM NONUSURIOUS AMOUNT PERMITTED BY
APPLICABLE LAW.
8.8 Confidentiality. The Administrative Agent and each Lender shall
use any confidential non-public information concerning the Parent, the
Borrower and their respective Subsidiaries that is furnished to the
Administrative Agent or such Lender by or on behalf of the Parent, the
Borrower and their respective Subsidiaries in connection with the Credit
Documents (collectively, "Confidential Information") solely for the purpose
of evaluating and providing products and services to them and administering
and enforcing the Credit Documents, and it will hold the Confidential
Information in confidence. Notwithstanding the foregoing, the
Administrative Agent and each Lender may disclose Confidential Information
(a) to their affiliates or any of their or their affiliates' directors,
officers, employees, auditors, counsel, advisors, or representatives
(collectively, the "Representatives") whom it determines need to know such
information for the purposes set forth in this Section; (b) to any bank or
financial institution or other entity to which such Lender has assigned or
desires to assign an interest or participation in the Credit Documents or
the Revolving Obligations, provided that any such foregoing recipient of
such Confidential Information agrees to keep such Confidential Information
confidential as specified herein; (c) to any governmental agency or
regulatory body having or claiming to have authority to regulate or oversee
any aspect of the Administrative Agent's or such Lender's business or that
of their Representatives in connection with the exercise of such authority
or claimed authority; (d) to the extent necessary or appropriate to effect
or preserve the Administrative Agent's or such Lender's or any of their
Affiliates' security (if any) for any Revolving Obligation or to enforce
any right or remedy or in connection with any claims asserted by or against
the Administrative Agent or such Lender or any of their Representatives;
and (e) pursuant to any subpoena or any similar legal process. For purposes
hereof, the term "Confidential Information" shall not include information
that (x) is in the Administrative Agent's or a Lender's possession prior to
its being provided by or on behalf of the Borrower, provided that such
information is not known by the Administrative Agent or such Lender to be
subject to another confidentiality agreement with, or other legal or
contractual obligation of confidentiality to, the Borrower, (y) is or
becomes publicly available (other than through a breach hereof by the
Administrative Agent or such Lender), or (z) becomes available to the
Administrative Agent or such Lender on a nonconfidential basis, provided
that the source of such information was not known by the Administrative
Agent or such Lender to be bound by a confidentiality agreement or other
legal or contractual obligation of confidentiality with respect to such
information.
8.9 Nature of Lender's Obligations. Nothing contained in this
Agreement or any other Credit Document and no action taken by the
Administrative Agent or the Lenders or any of them pursuant hereto or
thereto may, or may be deemed to, make the Lenders a partnership, an
association, a joint venture or other entity, either among themselves or
with the Borrower or any Affiliate of the Borrower. Each Lender's
obligation to make any Extension of Credit pursuant hereto is several and
not joint or joint and several. A default by any Lender will not increase
the pro rata share attributable to any other Lender.
8.10 Indemnity by Borrower. The Borrower agrees to indemnify, save and
hold harmless each Administrative Agent-Related Person and each Lender and
their respective Affiliates, directors, officers, agents, attorneys and
employees (collectively the "Indemnitees") from and against: (a) any and
all claims, demands, actions or causes of action that are asserted against
any Indemnitee by any Person (other than the Administrative Agent or any
Lender) relating directly or indirectly to a claim, demand, action or cause
of action that such Person asserts or may assert against the Borrower, any
of their Affiliates or any of their officers or directors; (b) any and all
claims, demands, actions or causes of action arising out of or relating to,
the Credit Documents, any predecessor loan documents, the Commitments, the
use or contemplated use of the proceeds of any Loan, or the relationship of
the Borrower, the Administrative Agent and the Lenders under this
Agreement; (c) any administrative or investigative proceeding by any
Governmental Authority arising out of or related to a claim, demand, action
or cause of action described in subsection (a) or (b) above; and (d) any
and all liabilities, losses, costs or expenses (including Attorney Costs)
that any Indemnitee suffers or incurs as a result of the assertion of any
foregoing claim, demand, action, cause of action or proceeding, or as a
result of the preparation of any defense in connection with any foregoing
claim, demand, action, cause of action or proceeding, in all cases, whether
or not arising out of the negligence of an Indemnitee, whether or not an
Indemnitee is a party to such claim, demand, action, cause of action or
proceeding (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that no Indemnitee shall be entitled to
indemnification for any loss caused by its own gross negligence or willful
misconduct or for any loss asserted against it by another Indemnitee.
8.11 Nonliability of Lenders. The Borrower acknowledges and agrees
that:
(a) Any inspections of any property of the Borrower made by or
through the Administrative Agent or the Lenders are for purposes of
administration of the Credit Documents only, and the Borrower is not
entitled to rely upon the same (whether or not such inspections are at
the expense of the Borrower);
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to the Administrative Agent or the
Lenders pursuant to the Credit Documents, neither the Administrative
Agent nor the Lenders shall be deemed to have warranted or represented
the sufficiency, legality, effectiveness or legal effect of the same,
or of any term, provision or condition thereof, and such acceptance or
approval thereof shall not constitute a warranty or representation to
anyone with respect thereto by the Administrative Agent or the
Lenders;
(c) Neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Credit
Documents, and the relationship between the Administrative Agent (and
the Lenders) and the Borrower, in connection herewith or therewith is
solely that of debtor and creditor; and
(d) No joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
8.12 No Third Parties Benefited. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and
duties of the Borrower, the Administrative Agent and the Lenders in
connection with the Extensions of Credit, and is made for the sole benefit
of the Borrower, the Administrative Agent and the Lenders, and the
Administrative Agent's and the Lenders' successors and assigns. Except as
provided in Sections 8.3 and 8.10, no other Person shall have any rights of
any nature hereunder or by reason hereof.
8.13 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same agreement. It
shall not be necessary in making proof of this Agreement to produce or
account for more than one such counterpart.
8.14 Headings. The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the meaning
or construction of any provision of this Agreement.
8.15 Survival. The indemnities and payment obligations hereunder,
including those set out in the Incorporated Loan Provisions and Section 8.5
hereof, shall survive the making and repayment of the Loans and termination
of commitments hereunder.
8.16 Governing Law. This Agreement and the rights and obligations of
the parties hereunder shall be governed by and construed in accordance with
the laws of the State of New York. The Borrower and the Lenders consent to
the nonexclusive jurisdiction of the federal and state courts located in
City of New York and waive, to the extent permitted by applicable law, the
right to trial by jury.
[Remainder of Page Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed this day by duly
authorized officers of the undersigned parties.
BORROWER: SABRE INC.,
a Delaware corporation
By: /s/ Jeffery M. Jackson
-------------------------------------
Name: Jeffery M. Jackson
Title: Executive Vice President and
Chief Financial Officer
LENDERS: BANK OF AMERICA, N.A.,
as Administrative Agent and a Lender
By: /s/ Kevin Leader
-------------------------------------
Name: Kevin Leader
Title: Managing Director
GOLDMAN SACHS CREDIT PARTNERS L.P.
By: /s/ Mark Denatale
-------------------------------------
Name: Mark Denatale
Authorized Signatory
MORGAN STANLEY SENIOR FUNDING, INC.
By:/s/ T. Morgan Edwards II
-------------------------------------
Name: T. Morgan Edwards II
Title: Vice President
<PAGE>
<TABLE>
<CAPTION>
Schedule 2.1
Schedule of Lenders and Commitments
Tranche A Revolving Tranche A Revolving Tranche B Revolving Tranche B Revolving
Lender Committed Amount Commitment Percentage Committed Amount Commitment Percentage
------ ----------------- --------------------- ---------------- ---------------------
<S> <C> <C> <C> <C>
Bank of America, N.A $311,400,000 50.0% 0 0.0%
Goldman Sachs Credit
Partners L.P. $311,400,000 50.0% 0 0.0%
Morgan Stanley Senior
Funding, Inc. 0 0.0% $242,200,000 100.0%
------------- ----- ------------ ------
Totals: $622,800,000 100.0% $242,200,000 100.0%
</TABLE>
<PAGE>
Schedule 2.2(a)
Form of Notice of Borrowing
Bank of America, N.A.
Mail Code: CA-706-05-09
Agency Administrative Services #5596
1850 Gateway Blvd., 5th Floor
Concord, CA 94520
Attn: Brian Graybill
Ph: (925) 675-8414
Fx: (925) 969-2813
RE: Credit Agreement dated as of October 10, 2000 (as amended and
modified, the "Credit Agreement") among Sabre Inc., the Lenders
identified therein and Bank of America, N.A., as Administrative
Agent. Terms used but not otherwise defined herein shall have
the meanings provided in the Credit Agreement.
Ladies and Gentlemen:
The undersigned hereby gives notice of a request for a Revolving Loan
pursuant to Section 2.2(a) of the Credit Agreement:
Tranche A Tranche B
Revolving Loan Revolving Loan
(A) Date of Borrowing
(which is a Business Day)
-------------- --------------
(B) Interest rate basis
-------------- --------------
(C) Interest Period and the
last day thereof
-------------- --------------
In accordance with the requirements of Section 4.2 of the Credit Agreement,
the undersigned Borrower hereby certifies that:
(a) The representations and warranties contained in the Credit
Agreement and the other Credit Documents (including the Incorporated
Representations) are true and correct in all material respects as of the
date of this request, and will be true and correct after giving effect to
the requested Loan (except for those which expressly related to an earlier
date); provided that, following the acquisition of GetThere, Inc., the
representations and warranties made in respect of GetThere, Inc. and its
Subsidiaries shall be made to the best of the Borrower's knowledge.
(b) No Default or Event of Default exists, or will exist after
giving effect to the requested Loan advance.
Very truly yours,
SABRE INC.
By:
----------------------------------
Name:
Title:
<PAGE>
Schedule 2.5
Form of Note
October 10, 2000
FOR VALUE RECEIVED, the undersigned Borrower hereby promises to pay to
the order of _______________________, its successor and assigns (the
"Lender"), on or before the Termination Date to the office of the
Administrative Agent in U.S. dollars and in immediately available funds as
provided in the Credit Agreement, the Lender's [Tranche A] [Tranche B]
Revolving Committed Amount or, if less, the aggregate unpaid principal
amount of all [Tranche A] [Tranche B] Revolving Loans owing to the Lender;
together with interest thereon at the rates and as provided in the Credit
Agreement.
This Note is issued pursuant to, and is entitled to the benefits of,
the Credit Agreement dated as of October 10, 2000 (as amended and modified,
the "Credit Agreement") among Sabre Inc., the Lenders identified therein,
and Bank of America, N.A., as Administrative Agent, to which Credit
Agreement reference is hereby made for a statement of the terms and
conditions under which this Note may be prepaid or its maturity date
accelerated. Capitalized terms used herein and not otherwise defined herein
are used with the meanings provided in the Credit Agreement.
The holder may endorse and attach a schedule to reflect borrowings
evidenced by this Note and all payments and prepayments thereon; provided
that any failure to endorse such information shall not affect the
obligation of the undersigned Borrower to pay amounts evidenced hereby.
In the event payment of amounts due hereunder are accelerated under
the terms of the Credit Agreement, all such amounts shall become
immediately due and payable, without presentment, demand, protest or notice
of any kind, all of which are hereby waived by the undersigned Borrower.
Further, in the event this Note is not paid when due at any stated or
accelerated maturity, the undersigned Borrower agrees to pay, in addition
to principal and interest, all costs of collection, including reasonable
attorneys' fees.
This Note and the Loans and amounts evidenced hereby may be
transferred only as provided in the Credit Agreement.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
IN WITNESS WHEREOF, the undersigned Borrower has caused this Note to
be duly executed as of the date first written above.
SABRE INC.,
a Delaware corporation
By:
-------------------------------------
Name:
Title:
<PAGE>
Schedule 3.2
Notice of Extension/Conversion
Bank of America, N.A.
Mail Code: CA-706-05-09
Agency Administrative Services #5596
1850 Gateway Blvd., 5th Floor
Concord, CA 94520
Attn: Brian Graybill
Ph: (925) 675-8414
Fx: (925) 969-2813
RE: Credit Agreement dated as of October 10, 2000 (as amended and
modified, the "Credit Agreement") among Sabre Inc., the Lenders
identified therein and Bank of America, N.A., as Administrative
Agent. Terms used but not otherwise defined herein shall have the
meanings provided in the Credit Agreement.
Ladies and Gentlemen:
The undersigned hereby gives notice pursuant to Section 3.2 of the
Credit Agreement that it requests an extension or conversion of a Loan
outstanding under the Credit Agreement, and in connection therewith sets
forth below the terms on which such extension or conversion is requested to
be made:
Tranche A Tranche B
Revolving Loans Revolving Loans
(A) Date of Extension or Conversion
(which is the last day of the
applicable Interest Period)
-------------- --------------
(B) Principal Amount of Extension or
Conversion
-------------- --------------
(C) Interest rate basis
-------------- --------------
(D) Interest Period and the last day
thereof
-------------- --------------
In accordance with the requirements of Section 4.2 of the Credit
Agreement, the undersigned Borrower hereby certifies that:
(a) The representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct in all
material respects as of the date of this request, and will be true and
correct after giving effect to the requested Loan advance (except for
those which expressly relate to an earlier date); provided that,
following the acquisition of GetThere, Inc., the representations and
warranties made in respect of GetThere, Inc. and its Subsidiaries
shall be made to the best of the Borrower's knowledge.
(b) No Default or Event of Default exists, or will exist after
giving effect to the requested Loan advance.
Very truly yours,
SABRE INC.
By:
-----------------------------
Name:
Title:
<PAGE>
Schedule 4.1(c)(v)
Officer's Certificate
Pursuant to Section 4.1(c)(v) of the Credit Agreement (the "Credit
Agreement"), dated as of October 10, 2000, among Sabre Inc., a Delaware
corporation (the "Corporation"), the Lenders identified therein and Bank of
America, N.A., as Administrative Agent, the undersigned,
_____________________ Secretary of the Corporation hereby certifies as
follows:
1. Attached hereto as Annex I is a true and complete copy of
resolutions duly adopted by the Board of Directors of the Corporation on
_______________________, 2000. The attached resolutions have not been
rescinded or modified and remain in full force and effect. The attached
resolutions are the only corporate proceedings of the Corporation now in
force relating to or affecting the matters referenced to therein.
2. Attached hereto as Annex II is a true and complete copy of the
By-laws of the Corporation as in effect on the date hereof.
3. Attached hereto as Annex III is a true and complete copy of the
Certificate of Incorporation of the Corporation and all amendments thereto
as in effect on the date hereof.
4. The following persons are now duly elected and qualified officers
of the Corporation, holding the offices indicated, and the signature
appearing opposite his name below is his true and genuine signature, and
such officer is duly authorized to execute and deliver on behalf of the
Corporation, the Credit Agreement, the Notes to be issued pursuant thereto
and the other Credit Documents and to act as a responsible officer on
behalf of the Corporation under the Credit Agreement.
Name Office Signature
---- ------ ---------
------------------------
------------------------
IN WITNESS WHEREOF, the undersigned has hereunto set his/her name and
affixed the corporate seal of the Corporation.
-----------------------------
Secretary
(CORPORATE SEAL)
Date: ______________, 2000
I, _____________________, ___________________ of Sabre Inc., hereby
certify that _____________________, whose genuine signature appears above,
is, and has been at all times since ______________________, a duly elected,
qualified and acting ____________________ of Sabre Inc.
_______________________________ of
Sabre Inc.
____________, 2000
<PAGE>
<TABLE>
<CAPTION>
Schedule 8.1
EURODOLLAR AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
Name Legal Notices Domestic Lending Office Eurodollar Lending Office
---- ------------- ----------------------- -------------------------
<S> <C> <C> <C>
Sabre Inc. Sabre Inc. N/A N/A
4255 Amon Carter Boulevard
MD 4224
Fort Worth, TX 76155
Attn: Patricia A. Jones,
Director of Corporate Finance
Tel: 817-931-9277
Fax: 817-967-4911
Email: [email protected]
With a copy to:
Sabre Inc.
4255 Amon Carter Boulevard
MD 4204
Fort Worth, TX 76155
Attn: General Counsel
Bank of America, N.A. Bank of America, N.A. Bank of America, N.A. Bank of America, N.A.
Mail Code: CA5-705-12-14 Mail Code: CA4-706-05-09 Mail Code: CA4-706-05-09
Diversified Industries #9994 Agency Administrative Services Agency Administrative Services
555 California Street, 12th Floor #5596 #5596
San Francisco, CA 94104 1850 Gateway Boulevard, 5th Floor 1850 Gateway Boulevard, 5th Floor
Attn: Kevin Leader Concord, CA 94520 Concord, CA 94520
Tel: 415-622-8168 Attn: Brian Graybill Attn: Brian Graybill
Fax: 415-622-2385
Email:[email protected] Tel: 925-675-8414 Tel: 925-675-8414
Fax: 925-969-2813 Fax: 925-969-2813
Email: Email:
Acct No.: Acct No.:
Ref: Ref:
Goldman Sachs Credit
Partners L.P. Goldman, Sachs & Co. Goldman, Sachs & Co. Goldman, Sachs & Co.
85 Broad Street - 6th Floor 85 Broad Street - 6th Floor 85 Broad Street - 6th Floor
New York, NY 10004 New York, NY 10004 New York, NY 10004
Attn: Barbara Aaron Attn: Sandra Stulberger Attn: Sandra Stulberger
Tel: 212-357-3111 Tel: 212-902-5977 Tel: 212-902-5977
Fax: 212-357-4597 Fax: 212-357-4597 Fax: 212-357-4597
Email: Email: Email:
Morgan Stanley Senior
Funding, Inc. Morgan Stanley Senior Funding, Inc. Morgan Stanley Senior Funding, Inc. Morgan Stanley Senior Funding, Inc
1633 Broadway - 26th Floor 1221 Avenue of the Americas 1221 Avenue of the Americas
New York, NY 10019 35th Floor 35th Floor
Attn: James Morgan New York, NY 10020 New York, NY 10020
Attn: Mark Cross / Dan Ryan Attn: Mark Cross / Dan Ryan
Tel: 212-537-1470
Fax: 212-537-1867 Tel: 212-762-6755 / 5802 Tel: 212-762-6755 / 5802
Email: [email protected] Fax: 212-762-9181 Fax: 212-762-9181
---------------------
Email: [email protected] Email: [email protected]
------------------- -------------------
[email protected] [email protected]
</TABLE>
<PAGE>
Schedule 5.1
------------
See attached.
<PAGE>
SCHEDULE 7.01
EXISTING INDEBTEDNESS, LIENS AND NEGATIVE PLEDGES
Lease Financing Facility: $108,732,447.77 (balance as of September 18, 2000
tranche roll over)
Bridge Credit Facility: $200,000,000 due February 4, 2001*
Revolving Credit Facility: $149,000,000 (balance as of September 21, 2000
tranche roll over)
Other Indebtedness: $29,817,271 (balance as of September 15, 2000)
* To be paid off by funds from the Bridge Credit Agreement, dated as
October 10, 2000, which provides for revolving loans up to an aggregate
principal amount of $865,000,000.
