EXHIBIT (b)(1)
CONFORMED COPY
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT dated as of December 14, 1995 to the $2,000,000,000 Credit
Agreement dated as of December 15, 1994 (the "Agreement") among Atlantic
Richfield Company (the "Company"), certain subsidiaries of the Company, the
banks listed on the signature pages thereof (the "Banks") and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as Agent (the "Agent").
The parties to the Agreement wish to amend the Agreement to increase
the Commitments of the Banks, as hereinafter provided, such that the aggregate
amount of the Commitments is $3,000,000,000, to extend the Commitment
Termination Date, to amend the pricing of interest and fees thereunder, and to
make certain other amendments to the Agreement, all as hereinafter set forth.
The parties therefore agree as follows:
SECTION 1. Definitions: References. Unless otherwise specifically
-----------------------
defend herein, each term used herein which is defined in the Agreement shall
have the meaning assigned to such term in the Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Agreement shall from and after the date hereof refer to the
Agreement as amended hereby.
SECTION 2. Amendment of Commitment Amounts. The definition of
-------------------------------
"Commitment" in Section 1.01 is amended to read in full as follows:
"Commitment" shall mean, as to each Bank, the Dollar Amount set forth
opposite its name on Schedule II hereto under the heading "Commitment" (as
such amount may be reduced from time to time as provided in Sections 2.09
and 2.10).
A new Schedule II is added to the Credit Agreement in the form attached hereto.
SECTION 3. Excluded Subsidiaries. (a) The definition of "Excluded
---------------------
Subsidiary" is amended by replacing the "and" immediately in front of clause
(iii) with a comma, and adding a new clause (iv) thereto to read as follows:
and (iv) any Subsidiary which is a single-purpose entity with
indebtedness incurred to finance the construction or development of any
properties or assets, or the acquisition from a Person other than the
Company or its Subsidiaries of
any properties or assets, if the Person or Persons providing such financing
expressly agree to look to the properties or assets financed or to be
financed and the revenues to be generated by the operation of, or loss or
damage to, such properties or assets as the principal source for the
repayment of such indebtedness, notwithstanding the existence of any
guarantees with respect to repayment of such indebtedness.
(b) Clause (e) of Section 6.01 is amended by adding immediately after
the words "payable or guaranteed by it" the parenthetical phrase, "(including,
without limitation, any indebtedness for borrowed money of any Excluded
Subsidiary to the extent that it is also payable by or is guaranteed by the
Company or any Subsidiary)".
SECTION 4. Extension of Commitment Termination Date. The definition of
------------ ---------------------------
"Commitment Termination Date" in Section 1.01 is amended to read in full as
follows:
"Commitment Termination Date" shall mean December 15, 2000 or, if such
day is not a Euro-Currency Business Day, the next succeeding Euro-Currency
Business Day unless such Euro~Currency Business Day falls in another
calendar month, in which case the Commitment Termination Date shall be the
next preceding Euro-Currency Business Day.
SECTION 5. Amendment of Timing for Certain Borrowings in Pounds
----------------------------------------------------
Sterling. (a) Section 2.02 of the Agreement is hereby amended by amending clause
--------
(z) thereof (ending immediately before the word "specifying" where it appears
therein) to read in full as follows:
(z) (A) in the case of a Euro-Currency Borrowing to be made in English
pounds sterling, 11:00 a.m., New York City time, on the second Euro-
Currency Business Day before each such Euro-Currency Borrowing and (B) in
the case of a Euro-Currency Borrowing to be made in an Agreed Currency
other than Dollars or English pounds sterling, 12:00 noon, New York City
time, on the fourth Euro-Currency Business Day before each such
Euro-Currency Borrowing,
(b) The second paragraph of Section 2.07(c) is amended by adding,
immediately after the phrase, "at approximately 11:00 a.m., London time,
two Euro-Currency Business Days before the first day of such Interest Period",
the following parenthetical phrase:
(or, in the case of a Euro-Currency Borrowing to be made in English pounds
sterling, at approximately 11:00 a.m., London time, on the first
Euro-Currency Business Day before the first day of such Interest Period)
2
SECTION 6. Amendment of Pricing. The pricing grid set forth in Section
--------------------
2.07(h) of the Agreement is amended to read in full as follows:
Level I Level II Level III Level IV
Pricing Pricing Pricing Pricing
--------------------------------------------------------------------------------
Euro-Currency Margin 0.140% 0.150% 0.250% 0.500%
--------------------------------------------------------------------------------
CD Margin 0.265% 0.275% 0.375% 0.625%
--------------------------------------------------------------------------------
Facility Fee Rate 0.060% 0.075% 0.125% 0.250%
--------------------------------------------------------------------------------
SECTION 7. Termination of 364-Day Credit Agreement. The Commitments
---------------------------------------
under the $1,000,000,000 Credit Agreement dated as of December 15, 1994 among
the Company, the other Borrowers referred to therein, the banks listed on the
signature pages thereof and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Agent,
shall terminate on December 14, 1995 simultaneously with the effectiveness
hereof.
SECTION 8. Governing Law. This Amendment shall be governed by and
-------------
construed in accordance with the laws of the State of New York.
SECTION 9. Counterparts: Effectiveness. This Amendment may be signed
---------------------------
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Amendment shall become effective when the Agent shall have received duly
executed counterparts hereof signed by the Company, all of the Banks and the
Agent.
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
THE COMPANY
ATLANTIC RICHFIELD COMPANY
By /s/ ▇▇▇▇▇ ▇. Dallas
---------------------------------------
Title: Vice President & Treasurer
▇▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Title: Vice President
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ Mever
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Title: Vice President
CHEMICAL BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
4
CITIBANK, N.A.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ L. ▇▇▇▇ ▇▇▇▇▇
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Title: Senior Vice President
NATIONSBANK OF TEXAS, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
UNION BANK OF SWITZERLAND
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Managing Director
NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
NASSAU BRANCH
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
5
THE TORONTO-DOMINION BANK
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Manager Credit Administration
PNC BANK, NATIONAL ASSOCIATION
By /s/ ▇▇▇ ▇. ▇▇▇▇
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Title: Assistant Vice President
THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
FIRST INTERSTATE BANK OF CALIFORNIA
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Title: Vice President
By ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Assistant Vice President
THE CHASE MANHATTAN BANK, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Vice President
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CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By /s/ Xavier Ratouis
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Title: Authorized Signature
THE FUJI BANK, LIMITED, LOS ANGELES AGENCY
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Joint General Manager
THE DAI-ICHI KANGYO BANK, LTD.
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Title: Senior Vice President &
Joint General Manager
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
LOS ANGELES AGENCY
By /s/ Kazutaka Kiyoto
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Title: Senior Vice President
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Deputy General Manager
▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Relationship Manager
CREDIT SUISSE
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Member of Senior Management
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Associate
MELLON BANK, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: First Vice President
SOCIETE GENERALE
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Title: Vice President
THE SUMITOMO BANK, LIMITED
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: General Manager
8
BARCLAYS BANK PLC
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Title: Director
THE SANWA BANK, LIMITED
LOS ANGELES BRANCH
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
UNION BANK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Title: Vice President
FIRST NATIONAL BANK OF BOSTON
By /s/ ▇▇▇▇▇▇▇ ▇. Row
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Title: Director
WACHOVIA BANK OF GEORGIA, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Senior Vice President
9
BANK OF MONTREAL
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Director
THE NORTHERN TRUST COMPANY
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
SWISS BANK CORPORATION,
NEW YORK BRANCH
By /s/ H. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Associate Director
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Director
WESTPAC BANKING CORPORATION
By /s/ R. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Senior Vice President & Manager
10
NATIONAL AUSTRALIA BANK
LIMITED A.C.N. 004044937
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Title: Vice President
KREDIETBANK N.V.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Vice President
NATIONAL BANK OF ALASKA
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Title: Vice President
11
SCHEDULE II
COMMITMENTS OF BANKS
Commitment Name of Bank
---------- ------------
$180,000,000 ▇▇▇▇▇▇ Guaranty Trust Company
of New York
150,000,000 Bank of America National Trust
& Savings Association
150,000,000 Citibank, N.A.
150,000,000 The First National Bank of Chicago
150,000,000 First Interstate Bank of California
150,000,000 National Westminster Bank plc
150,000,000 NationsBank of Texas, N.A.
150,000,000 Union Bank of Switzerland
100,000,000 The Bank of New York
100,000,000 Barclays Bank PLC
100,000,000 Credit Suisse
100,000,000 The Dai-Ichi Kangyo Bank, Ltd
100,000,000 The Fuji Bank, Limited, Los Angeles Agency
100,000,000 The Industrial Bank of Japan, Limited,
Los Angeles Agency
100,000,000 The Toronto-Dominion Bank
75,000,000 The Chase Manhattan Bank, N.A.
75,000,000 Chemical Bank
12
Commitment Name of Bank
---------- ------------
60,000,000 The Bank of Nova Scotia
60,000,000 Credit Lyonnais Cayman Islands Branch
60,000,000 Mellon Bank, N.A.
60,000,000 National Australia Bank Limited A.C.N.
004044937
60,000,000 PNC Bank, National Association
60,000,000 The Sanwa Bank, Limited, Los Angeles Branch
60,000,000 Societe Generale
60,000,000 The Sumitomo Bank, Limited
60,000,000 Union Bank
60,000,000 Westpac Banking Corporation
45,000,000 First National Bank of Boston
45,000,000 Bank of Montreal
45,000,000 The Long Term Credit Bank of Japan, Ltd.,
Los Angeles Agency
45,000,000 The Northern Trust Company
45,000,000 Swiss Bank Corporation, New York Branch
45,000,000 Wachovia Bank of Georgia, N.A.
30,000,000 Kredietbank N.V.
20,000,000 National Bank of Alaska
13
(b)(1)
CONFORMED COPY
================================================================================
ATLANTIC RICHFIELD COMPANY
$2,000,000,000
CREDIT AGREEMENT
Dated as of December 15, 1994
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK,
as Agent
================================================================================
14
TABLE OF CONTENTS
Section Page
------- ----
ARTICLE I
Definitions
1.01. Definitions .................................................... 1
1.02. Accounting Terms and Determinations ............................ 15
ARTICLE II
The Credits
2.01. Commitmems to Lend ............................................. 15
2.02. Notice of Syndicated Borrowings ................................ 16
2.03. Money Market Borrowings ........................................ 17
2.04. Notice to Banks; Funding of Loans .............................. 21
2.05. Notes .......................................................... 22
2.06. Method of Electing Interest Rates............................... 23
2.07. Inerest Rates................................................... 24
2.08. Fees............................................................ 28
2.09. Optional Termination or Reduction of Commitments................ 29
2.10. Maturity of Loans; Mandatory Termination of Commitments......... 29
2.11. Optional Prepayments............................................ 29
2.12. General Provisions as to Payments............................... 30
2.13. Funding Losses.................................................. 31
2.14. Computation of Interest and Fees................................ 32
2.15. Judgment Currency............................................... 32
2.16. Foreign Taxes................................................... 33
2.17. Maximum Interest Rate........................................... 35
ARTICLE III
Conditions To Borrowings
3.01. Initial Borrowing by Each Borrower ............................. 35
3.02. Each Borrowing ................................................. 37
15
Section Page
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ARTICLE IV
Representations And Warranties
4.01. Representations and Warranties of the Company ..................... 38
4.02. Representations and Warranties of Each Subsidiary Borrower ........ 40
ARTICLE V
Covenants
5.01. Certain Information to be Furnished by the Company................. 42
5.02. Limitation on Mortgages............................................ 44
5.03. Limitation on Sale and Lease-Back.................................. 45
5.04. Consolidation, Merger, Disposition of Assets....................... 46
5.05. Use of Proceeds.................................................... 47
ARTICLE VI
Defaults
6.01. Defaults........................................................... 47
6.02. Notice of Default.................................................. 49
ARTICLE VII
The Agent
7.01. Appointment and Authorization..................................... 50
7.02. Agent and Affiliates.............................................. 50
7.03. Action by Agent................................................... 50
7.04. Consultation with Experts......................................... 50
7.05. Liability of Agent................................................ 50
7.06. Indemnification................................................... 50
7.07. Credit Decision................................................... 51
7.08. Successor Agent................................................... 51
16
Section Page
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ARTICLE VIII
Change In Circumstances
8.01. Basis for Determining Interest Rate Inadequate or Unfair........... 51
8.02. Illegality......................................................... 54
8.03. Increased Cost and Reduced Return.................................. 54
8.04. Substitute Loans................................................... 56
8.05. Regulation D Compensation.......................................... 57
8.06. Substitution of Bank............................................... 57
ARTICLE IX
The Guarantee
9.01. The Guarantee...................................................... 58
9.02. Guarantee Unconditional............................................ 58
9.03. Waiver by the Company.............................................. 59
9.04. Stay of Acceleration............................................... 59
9.05. Reinstatement in Certain Circumstances............................. 59
ARTICLE X
Miscellaneous
10.01. Notices.......................................................... 60
10.02. No Waiver........................................................ 60
10.03. Governing Law.................................................... 60
10.04. Expenses......................................................... 60
10.05. Amendments, Etc.................................................. 61
10.06. Counterparts; Effectiveness...................................... 61
10.07. Successors and Assigns........................................... 62
10.08. Survival......................................................... 63
10.09. Acknowledgment................................................... 63
10.10. Headings......................................................... 63
10.11. Sharing of Setoffs............................................... 63
10.12. Collateral....................................................... 64
10.13. Consent to Jurisdiction.......................................... 64
17
Section Page
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SCHEDULE I - Euro-Currency Payment Offices of the Agent
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Form of Certificate of Incumbency
Exhibit F - Form of Opinion of Counsel for the Borrower
Exhibit G - Form of Opinion of Special Counsel for the Agent
Exhibit H - Assignment and Assumption Agreement
Exhibit I - Notice of Effectiveness
18
Credit Agreement (the "Agreement" dated as of December 15, 1994 among
Atlantic Richfield Company (the "Company" or a "Borrower"), each Subsidiary of
the Company which has executed and delivered a counterpart of this Agreement
(individually, a "Subsidiary Borrower" and collectively with the Company, the
"Borrowers"), each of the Banks listed on the signature pages hereof which has
executed and delivered this Agreement (individually, a "Bank" and collectively,
the "Banks") and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Agent (the
"Agent").
The Borrowers desire to borrow from the Banks from time to time amounts in
Dollars and other currencies, the aggregate Dollar Amount of which will not
exceed in the aggregate $2,000,000,000 outstanding at the time of any Borrowing,
for their general corporate purposes and the Banks are prepared to make loans
upon the terms hereof. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.01. Definitions. In addition to terms defined elsewhere in this
Agreement, as used in this Agreement the following terms shall have the
following meanings (all terms defined in this Agreement in the singular to have
the same meanings when used in the plural and vice versa):
"Absolute Rate Auction" shall mean a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Adjusted CD Rate" shall have the meaning set forth in Section 2.07(b).
"Administrative Questionnaire" means, with respect to any Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Company) duly completed by such Bank.
"Agent" shall mean ▇▇▇▇▇▇ Guaranty Trust Company of New York in its capacity
as agent for the Banks hereunder, and its successors in such capacity.
"Agreed Currency" shall mean Dollars, Canadian dollars, Deutsche Marks,
French francs, Japanese yen and pounds sterling and any other currency which is
freely transferable and convertible into Dollars, in which deposits are
customarily offered to banks in the London interbank market, which the Company
requests the Agent to include
19
as an Agreed Currency hereunder and which is acceptable to each Bank; provided
that the Agent shall promptly notify each Bank of each such request and each
Bank shall be deemed to have agreed to each such request if its objection
thereto has not been received by the Agent within five Domestic Business Days
from the date of such notification by the Agent to such Bank.
"Applicable Lending Office" means, with respect to any Bank, (i) in the case
of its Domestic Loans, its Domestic Lending Office, (ii) in the case of its
Euro-Currency Loans, its Euro-Currency Lending Office and (iii) in the case of
its Money Market Loans, its Money Market Lending Office.
"Approximate Equivalent Amount" of any currency with respect to any amount
of Dollars at any date shall mean the Equivalent Amount of such currency with
respect to such amount of Dollars at such date (i) if such currency is an Agreed
Currency listed below, rounded up to the nearest amount of such Agreed Currency
set forth below opposite such amount of Dollars:
AMOUNT OF AMOUNT OF AMOUNT OF AMOUNT OF AMOUNT OF
AMOUNT OF CANADIAN DEUTSCHE FRENCH JAPANESE POUNDS
DOLLARS DOLLARS MARKS FRANCS YEN STERLING
--------- --------- --------- -------- -------- ----------
up to 1,000,000 1,000 1,000 1,000 1,000 1,000
1,000,000 to 9,999,999 10,000 10,000 10,000 10,000 10,000
10,000,000 to 99,999,999 100,000 100,000 100,000 100,000 100,000
100,000,000 and upwards 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000
and (ii) if such currency is not an Agreed Currency listed above, rounded up to
the nearest amount of such currency as determined by the Agent from time to
time.
"Assessment Rate" shall have the meaning set forth in Section 2.07(b).
"Assignee" has the meaning set forth in Section 10.07(c).
"Authorized Officer" and "Authorized Representative" of any Borrower shall
mean an officer or other representative of such Borrower designated in the
latest Certificate of Incumbency of such Borrower. The Agent and the Banks shall
be conclusively entitled to rely on the latest such Certificate of Incumbency of
such Borrower delivered to the Agent.
"Bank" shall mean each bank which is listed on the signature pages hereof as
having a Commitment and which has executed and delivered this Agreement, and its
successors and assigns.
20
"Base Rate" means, for any day, a rate per annum equal to tile higher of (i)
the Prime Rate for such day or (ii) the sum of 1/2 of 1% plus the Federal Funds
Rate for such day.
"Base Rate Loan" means (i) a Syndicated Loan which bears interest at the Base
Rate pursuant to the applicable Notice of Syndicated Borrowing or Notice of
Interest Rate Election or the provisions of Article VIII or (ii) an overdue
amount which was a Base Rate Loan immediately before it became overdue.
"Borrower" shall mean the Company or any Subsidiary Borrower.
"Benefit Arrangement" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrowing" shall mean the aggregation of Loans of the same type and currency
of one or more Banks made or to be made to any one Borrower pursuant to Article
II on a single date and for a single Interest Period. Borrowings are classified
for purposes of this Agreement either by reference to the pricing of Loans
comprising such Borrowing (e.g., a "Euro-Currency Borrowing" is a Borrowing
comprised of Euro-Currency Loans) or by reference to the provisions of Article
II under which participation therein is determined (e.g., a "Syndicated
Borrowing" is a Borrowing under Section 2.01 in which all Banks participate in
proportion to their Commitments and a "Money Market Borrowing" is a Borrowing
under Section 2.03 in which the Bank participants are determined by the Agent in
accordance therewith).
"CD Base Rate" shall have the meaning set forth in Section 2.07(b).
"CD Loan" shall mean (i) a Syndicated Loan which bears interest at a CD Rate
pursuant to the applicable Notice of Syndicated Borrowing or Notice of Interest
Rate Election or the provisions of Article VIII or (ii) an overdue amount which
was a CD Loan immediately before it became overdue.
"CD Margin" shall have the meaning set forth in Section 2.07(h).
"CD Rate" means a rate of interest determined pursuant to Section 2.07 on the
basis of an Adjusted CD Rate.
"CD Reference Banks" shall mean Barclays Bank PLC, ▇▇▇▇▇▇ Guaranty Trust
Company of New York, Toronto Dominion Bank and Wachovia Bank and Trust
Company, N.A. and each such other bank as may be appointed pursuant to Section
10.07(d).
21
"Certificate of Incumbency" shall mean a Certificate of Incumbency described
in Section 3.01(ii) and any successor or replacement Certificate of Incumbency
delivered hereunder.
"Commitment" shall mean, as to each Bank, the Dollar Amount set forth
opposite its name on the signature pages hereof under the heading "Commitment"
(as such amount may be reduced from time to time as provided in Sections 2.09
and 2.10).
"Commitment Termination Date" shall mean December 15, 1999 or, if such day
is not a Euro-Currency Business Day, the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in another calendar month, in
which case the Commitment Termination Date shall be the next preceding
Euro-Currency Business Day.
"Company" shall mean Atlantic Richfield Company, a Delaware corporation, and
its permitted successors and assigns pursuant to Section 5.04 or 10.07(a)
hereof.
"Consolidated Net Tangible Assets" shall mean at any date the total amount
of assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities (excluding any thereof which are
by their terms extendible or renewable at the option of the obligor thereon to a
time more than 12 months after the time as of which the amount thereof is being
computed), and (b) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangible assets, all as set forth on
the most recent balance sheet of the Company and its Consolidated Subsidiaries
and computed in accordance with generally accepted accounting principles.
"Consolidated Subsidiary" shall mean, on any date, any Subsidiary or other
entity (including an Excluded Subsidiary) the accounts of which would be
consolidated with those of the Company in its consolidated financial statements
as of such date.
"Debt" shall mean notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"Default" shall mean any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Designated Currency" shall mean (i) each Agreed Currency, (ii) any other
currency which is freely transferable and convertible into Dollars, in which
deposits are customarily offered to banks in the London interbank market and
which the Company designates as a Designated Currency hereunder upon five
Domestic Business Days' notice in writing to the Banks through the Agent and
(iii) any other currency which is freely transferable and convertible into
Dollars, in which deposits are not customarily offered to banks in the London
interbank market and which the Company designates as a
22
Designated Currency hereunder by notice in writing to the Banks through the
Agent; provided that any notice given pursuant to this clause (iii) shall also
propose an appropriate amendment to this Agreement to provide for the basis for
determining the rate to which Money Market Margins are to be added or subtracted
in the relevant Money Market Quotes and to amend any other relevant provisions
hereof as necessary and that any such notice and proposed amendment shall be
effective for all purposes hereunder on the 2Oth Domestic Business Day after the
date of such notification by the Agent to each Bank if no Bank has objected
thereto to the Agent before such 20th Domestic Business Day.
"Dollar Amount" of any currency at any date shall mean (i) the amount of such
currency if such currency is Dollars or (ii) the equivalent amount of Dollars if
such currency is any currency other than Dollars, calculated on the basis of the
arithmetical mean of the buy and sell spot rates of exchange of the Agent for
such currency at the opening of business in London on the relevant FX Date.
"Dollars" and "$" shall mean lawful money of the United States of America.
"Domestic Business Day" shall mean any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized by law to close.
"Domestic Lending Office" shall mean, as to each Bank, its office, branch or
affiliate specified as its "Domestic Lending Office" in its Administrative
Questionnaire or such other office, branch or affiliate as such Bank may from
time to time specify to the Agent and each Borrower as its Domestic Lending
Office; provided that any Bank may from time to time by notice to each Borrower
and the Agent designate separate Domestic Lending Offices for its Base Rate
Loans, on the one hand, and its CD Loans, on the other hand, in which case all
references herein to the Domestic Lending Office of such Bank shall be deemed to
refer to either or both of such offices, as the context may require.
"Domestic Loans" shall mean CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" shall have the meaning set forth in Section
2.07(b).
"Equivalent Amount" of any currency with respect to any amount of Dollars at
any date shall mean the equivalent in such currency of such amount of Dollars,
calculated on the basis of the arithmetical mean of the buy and sell spot rates
of exchange of the Agent for such other currency at the opening of business in
London on the relevant FX Date.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
23
"ERISA Group" means the Company and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company, are treated as a single
employer under Section 414 of the Internal Revenue Code.
"Euro-Currency Business Day" shall mean any Domestic Business Day on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London and, where funds are to be paid or made available in
a currency other than Dollars, on which commercial banks are open for domestic
and international business (including dealings in deposits in such currency) in
both London and the place where such funds are to be paid or made available.
"Euro-Currency Lending Office" shall mean, as to each Bank, (i) for loans
denominated in each of Dollars, Canadian dollars, Deutsche Marks, French francs,
Japanese yen and pounds sterling, its office, branch or affiliate specified as
its "Euro-Currency Lending Office" for such currency in its Administrative
Questionnaire (or, if no such office is specified, its Domestic Lending Office
for Base Rate Loans) or such other office, branch or affiliate of such Bank as
it may from time to time specify to the Agent and each Borrower as its Euro-
Currency Lending Office and (ii) for loans denominated in each other Agreed
Currency permitted hereunder from time to time, such office, branch or
affiliate of such Bank as it may from time to time specify to the Agent and each
Borrower as its Euro-Currency Lending Office for such other currency (or, if no
such office is specified, its Domestic Lending Office for Base Rate Loans).
"Euro-Currency Loan" shall mean (i) a Syndicated Loan which bears interest at
a Euro-Currency Rate pursuant to the applicable Notice of Syndicated Borrowing
or Notice of Interest Rate Election or the provisions of Article VIII or (ii) an
overdue amount which was a Euro-Currency Loan immediately before it became
overdue.
"Euro-Currency Margin" shall have the meaning set forth in Section 2.07(h).
"Euro-Currency Payment Office" of the Agent shall mean, (i) for each of
Dollars, Canadian dollars, Deutsche Marks, French francs, Japanese yen and
pounds sterling, the office, branch or affiliate of the Agent specified as the
"Euro-Currency Payment Office" for such currency in Schedule I hereto or such
other office, branch, affiliate or correspondent bank of the Agent as it may
from time to time specify to each Borrower and each Bank as its Euro-Currency
Payment Office and, (ii) for each other Designated Currency, such office,
branch, affiliate or correspondent bank of the Agent as it may from time to time
specify to each Borrower and each Bank as its Euro-Currency Payment Office for
such Designated Currency.
"Euro-Currency Rate" means a rate of interest determined pursuant to Section
2.07 on the basis of the London Interbank Offered Rate.
24
"Euro-Currency Reference Banks" shall mean the principal London offices of
National Westminster Bank plc, ▇▇▇▇▇▇ Guaranty Trust Company of New York and
Union Bank of Switzerland and each such other bank as may be appointed pursuant
to Section 10.07(f).
"Euro-Currency Reserve Percentage" shall mean with respect to any Bank for
any day that percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the reserve requirement imposed on such Bank in
respect of "Eurocurrency Liabilities" as defined in Regulation D promulgated by
such Board (or in respect of any other category of liabilities which includes
deposits by reference to which the interest rate on Euro-Currency Loans and
Money Market LIBOR Loans is determined or in respect of any category of
extensions of credit or other assets which includes loans by a non-United States
office of such Bank to United States residents).
"Event of Default" shall have the meaning assigned to that term in Section
6.01.
"Excluded Subsidiaries" means at any time (i) ARCO Chemical Company and its
subsidiaries if the Company owns at such time directly or indirectly less than
90% of the outstanding voting securities of ARCO Chemical Company, (ii) Vastar
Resources, Inc. and its subsidiaries if the Company owns at such time directly
or indirectly less than 90% of the outstanding voting securities of Vastar
Resources, Inc. and (iii) Lyondell Petrochemical Company and its subsidiaries if
the Company owns at such time directly or indirectly less than 90% of the
outstanding voting securities of Lyondell Petrochemical Company.
"Existing Credit Agreement" means the Credit Agreement dated as of May 31,
1990 among the "Borrowers" referred to therein, the banks party thereto and
▇▇▇▇▇▇ Guaranty Trust Company of New York, as agent.
"Facility Fee Rate" has the meaning set forth in Section 2.07(h).
"Federal Funds Rate" means, for any day, the rate per annum (rounded upward,
if necessary, to the nearest 1/100th of 1%) equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day; provided that (i) if such day is not a Domestic Business
Day, the Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Domestic Business Day as so published on the next
succeeding Domestic Business Day and (ii) if no such rate is so published on
such next succeeding Domestic Business Day, the Federal Funds Rate for such day
shall be the average rate quoted to ▇▇▇▇▇▇ Guaranty Trust Company of New York on
such day on such transactions as determined by the Agent.
25
"Fixed CD Rate" shall have the meaning set forth in Section 2.07(b).
"Fixed Rate Loans" shall mean CD Loans or Euro-Currency Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest at the Base Rate
pursuant to Section 8.01(a)(iii)) or any combination of the foregoing.
"Foreign Subsidiary Borrower" shall mean a Subsidiary Borrower (i)
incorporated in a jurisdiction other than a jurisdiction of the United States of
America or (ii) incorporated in a jurisdiction of the United States of America
and treated as resident for tax purposes in a jurisdiction other than a
jurisdiction of the United States of America by the relevant taxing authority of
such other jurisdiction.
"FX Date" shall mean the date on which the Agent's spot rate of exchange
shall be determined for purposes of calculating the Dollar Amount and Equivalent
Amount of any currency at any time. With respect to any calculation of Dollar
Amount or Equivalent Amount as of:
(i) any borrowing date and the last day of each Interest Period for any
type of Borrowing or Group of Loans, the relevant FX Date shall be the latest
date by which a Notice of Borrowing or Notice of Interest Rate Election (if
any) is required to be delivered with respect to such Borrowing or Group of
Loans (unless the Group or Borrowing consists of Base Rate Loans or CD Loans
pursuant to Section 2.04(c), 8.01(a), 8.02 or 8.04(b), in which case the
relevant FX Date shall be four Euro-Currency Business Days before the
borrowing date or last day of the Interest Period);
(ii) the Commitment Termination Date, the relevant FX Date shall be four
Euro-Currency Business Days before the Commitment Termination Date;
(iii) any date of prepayment of any Loan which is not also a borrowing
date, the relevant FX Date shall be the date of such prepayment; and
(iv) each day on which any vote or other action by the Required Banks or
Banks having a specified proportion of the principal amount of the Loans is
to be taken or to be effective and each other day not specified above on
which the Dollar Amount or Equivalent Amount is to be determined (including,
without limitation, pursuant to Section 6.01(e) and 6.01(i)), the relevant FX
Date shall be such day.
"Group of Loans" means at any time a group of Loans consisting of (i) all
Syndicated Loans which are Base Rate Loans at such time, (ii) all Euro-Currency
Loans having the same Interest Period at such time or (iii) all CD Loans having
the same interest period at such time, provided that, if a Syndicated Loan of
any particular Bank is converted to or made as a Base Rate Loan pursuant to
Section 8.02 or 8.03, such Loan
26
shall be included in the same Group or Groups of Loans from time to time as it
would have been in if it had not been so converted or made.
"Guarantee" shall mean to guarantee or act, directly or indirectly, as a
surety for any Debt or other obligation of any other Person and, without
limiting the generality of the foregoing, to incur or assume any obligation,
direct or indirect, contingent or otherwise, (i) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep-
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise) or (ii) entered into for
the purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided that the term "guarantee" shall
not include to endorse for collection or deposit in the ordinary course of
business.
"Interest Period" shall mean: (1) with respect to each Euro-Currency
Borrowing, the period commencing on the date of borrowing specified in the
applicable Notice of Borrowing or on the date specified in the applicable Notice
of Interest Rate Election and ending 1, 2, 3 or 6 months thereafter (or 9 or 12
months thereafter if all Euro-Currency Reference Banks agree to such period) as
the Borrower of such Borrowing may elect in the applicable notice; provided
that:
(a) any Interest Period which would otherwise end on a day which is not a
Euro-Currency Business Day shall be extended to the next succeeding Euro-
Currency Business Day unless such Euro-Currency Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Euro-Currency Business Day;
(b) any Interest Period which begins on the last Euro-Currency Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Currency Business
Day of a calendar month; and
(c) any Interest Period which would otherwise end after the Commitment
Termination Date shall end on the Commitment Termination Date.
(2) with respect to each CD Loan, the period commencing on the date of
borrowing specified in the applicable Notice of Borrowing or on the date
specified in the applicable Notice of Interest Rate Election and ending 30, 60,
90 or 180 days thereafter (or 360 days thereafter if all CD Reference Banks
agree to such period) as the Borrower of such Borrowing may elect in the
applicable notice; provided that:
27
(a) any Interest Period which would otherwise end on a day which is not a
Euro-Currency Business Day shall be extended to the next succeeding Euro-
Currency Business Day; and
(b) any Interest Period which would otherwise end after the Commitment
Termination Date shall end on the Commitment Termination Date.
(3) with respect to each Base Rate Loan, the period commencing on the date of
borrowing specified in the applicable Notice of Borrowing or on the date
specified in the applicable Notice of Interest Rate Election and ending 30 days
thereafter; provided that:
(a) any Interest Period which would otherwise end on a day which is not a
Euro-Currency Business Day shall be extended to the next succeeding Euro-
Currency Business Day; and
(b) any Interest Period which would otherwise end after the Commitment
Termination Date shall end on the Commitment Termination Date.
(4) with respect to each Money Market LIBOR Loan, the period commencing on
the date of borrowing specified in the applicable Notice of Borrowing and ending
such whole number of months thereafter as the Borrower of such Borrowing may
elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which is not a
Euro-Currency Business Day shall be extended to the next succeeding Euro-
Currency Business Day unless such Euro-Currency Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Euro-Currency Business Day;
(b) any Interest Period which begins on the last Euro-Currency Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Currency Business
Day of a calendar month; and
(c) any Interest Period which begins before the Commitment Termination
Date and would otherwise end after the Commitment Termination Date shall end
on the Commitment Termination Date; and
(5) with respect to each Money Market Absolute Rate Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending on such day (not earlier than the seventh day) thereafter
as the Borrower of such Loan may elect in accordance with Section 2.03; provided
that:
28
(a) any Interest Period which would otherwise end on a day which is not a
Euro-Currency Business Day shall be extended to the next succeeding
Euro-Currency Business Day; and
(b) any Interest Period which begins before the Commitment Termination
Date and would otherwise end after the Commitment Termination Date shall end
on the Commitment Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended,
or any successor statute.
"LIBOR Auction" shall mean a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"Loan" shall mean a Domestic Loan or a Euro-Currency Loan or a Money Market
Loan and "Loans" means Domestic Loans or Euro-Currency Loans or Money Market
Loans or any combination of the foregoing.
"London Interbank Offered Rate" shall have the meaning set forth in Section
2.07(c).
"Material Plan" means at any time a Plan or Plans having aggregate Unfunded
Liabilities in excess of $200,000,000.
"Material Subsidiary" shall mean at any time a Subsidiary which as of such
time meets the definition of a "significant subsidiary" contained as of the date
hereof in Regulation S-X of the Securities and Exchange Commission.
"Money Market Absolute Rate" shall have the meaning set forth in Section
2.03(d)(ii)(E).
"Money Market Absolute Rate Loan" shall mean a Loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" shall mean, as to each Bank, (i) for
Money Market Loans denominated in Dollars, its Domestic Lending Office for Base
Rate Loans or such other office, branch or affiliate of such Bank as it may from
time to time specify as its Money Market Lending Office by notice to each
Borrower and the Agent and (ii) for Money Market Loans denominated in each other
Designated Currency, such office, branch or affiliate of such Bank as it may
from time to time specify as its Money Market Lending Office for such other
Designated Currency by notice to each Borrower and the Agent (or, if no such
office is specified, its Domestic Lending Office for Base Rate Loans); provided
that any Bank may from time to time by notice to each Borrower and
29
the Agent designate separate Money Market Lending Offices for each of its Money
Market LIBOR Loans denominated in each Designated Currency and its Money Market
Absolute Rate Loans in which case all references herein to the Money Market
Lending Office of such Bank shall be deemed to refer to one or all of such
offices, as the context may require.
"Money Market LIBOR Loan" shall mean a Loan to be made by a Bank pursuant to
a LIBOR Auction (including such a Loan bearing interest at the Base Rate
pursuant to Section 8.01(a)).
"Money Market Loan" shall mean a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" shall have the meaning set forth in Section
2.03(d)(ii)(D).
"Money Market Quote" shall mean an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03.
"Mortgage" shall mean, with respect to any asset, any mortgage, lien, pledge
or other encumbrance of any kind in respect of such asset.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"New York Interbank Offered Rate" applicable to any Interest Period for any
Euro-Currency Loan or Money Market LIBOR Loan shall mean the average (rounded
upward, if necessary, to the next higher 1/16 of 1%) of the respective rates
per annum at which deposits in the currency in which such Euro-Currency Loan or
Money Market LIBOR Loan is denominated are offered to each of the Euro-Currency
Reference Banks in the New York interbank market at approximately 11:00 a.m.,
New York City time, two Euro-Currency Business Days before the first day of such
Interest Period in an amount approximately equal to the principal amount of the
Euro-Currency Loan of such Euro-Currency Reference Bank to which such Interest
Period is to apply and for a period of time comparable to such Interest Period.
"Notes" means promissory notes of a Borrower, substantially in the form of
Exhibit A hereto and issued to a Bank upon its request pursuant to Section 2.05,
evidencing the obligation of such Borrower to repay the Loans made by it, and
"Note" means any one of such promissory notes issued hereunder.
30
"Notice of Borrowing" shall mean a Notice of Syndicated Borrowing (as defined
in Section 2.02) or a Notice of Money Market Borrowing (as defined in Section
2.03(f)) and "the date of a Notice of Borrowing" shall mean the date the Notice
of Borrowing is given to the Agent pursuant to Section 2.02 or 2.03(f), as the
case may be.
"Notice of Interest Rate Election" has the meaning set forth in Section 2.06.
"Parent" means, with respect to any Bank, any Person controlling such Bank.
"Participant" has the meaning set forth in Section 10.07(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" shall mean an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Prime Rate" shall mean the rate of interest publicly announced by ▇▇▇▇▇▇
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Qualifying Bank" shall mean, with respect to a Money Market Borrowing, any
Bank incorporated in, or formed under the law of, the country designated in the
Money Market Quote Request for such Borrowing or any other Bank whose Money
Market Lending Office for such Money Market Borrowing is located in such
country.
"Quarterly Date" shall mean the last day of each February, May, August and
November, commencing February 28, 1995.
"Reference Banks" shall mean the CD Reference Banks or the Euro-Currency
Reference Banks, as the context may require, and "Reference Bank" shall mean any
one of such Reference Banks.
31
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time (including any successor
provision thereto or any other United States law or regulation imposing reserves
on deposits or loans).
"Regulation U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time (including any successor
provision thereto).
"Required Banks" shall mean at any date Banks having at least 51% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, having Loans the Dollar Amount of the aggregate principal amount of
which evidence at least 51% of the Dollar Amount of the outstanding aggregate
principal amount of all the Loans.
"Restricted Property" shall mean:
(a) any property interest owned by the Company or a Subsidiary in land
located in the continental United States of America (which for the purposes
hereof shall include any property located off the coast of the continental
United States of America on which the Company or any Subsidiary conducts
operations pursuant to leases, rights or other authorizations from the United
States of America or any state thereof located within the continental United
States of America) and classified by such owner as productive of crude oil,
natural gas or other petroleum hydrocarbons in paying quantities;
(b) any refining plant or manufacturing plant owned by the Company or a
Subsidiary and located in the continental United States of America, except
(i) related facilities which in the opinion of the Board of Directors of the
Company are transportation or marketing facilities, and (ii) a refining plant
or manufacturing plant which in the opinion of the Board of Directors of the
Company is not a principal plant of the Company and its Subsidiaries; and
(c) any shares of capital stock or indebtedness of a Restricted
Subsidiary (excluding any of such shares which constitute "margin stock" as
defined in Regulation U).
"Restricted Subsidiary" shall mean any Subsidiary of the Company which owns
any Restricted Property, except a Subsidiary substantially all the physical
properties of which are located outside the continental United States of
America.
"Revolving Credit Period" shall mean the period from the date hereof to and
including the Commitment Termination Date.
32
"Subsidiary" shall mean any corporation or other entity (other than an
Excluded Subsidiary) of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of directors or other
Persons performing similar functions (whether or not any other class of
securities has or might have voting power by reason of the happening of a
contingency) are at the time owned directly or indirectly by the Company.
"Subsidiary Borrower" shall mean each Subsidiary which has executed and
delivered to the Agent a counterpart of this Agreement.
"Syndicated Loan" shall mean a Domestic Loan or a Euro-Currency Loan made by
a Bank pursuant to Section 2.01; provided that, if any such loan or loans (or
portions thereof) are combined or subdivided pursuant to a Notice of Interest
Rate Election, the term "Syndicated Loan" shall refer to the combined principal
amount resulting from such combination or to each of the separate principal
amounts resulting from such subdivision, as the case may be.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the present value of all benefits under such Plan
exceeds (ii) the fair market value of all Plan assets allocable to such benefits
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
Section 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Company's
independent public accountants) with the most recent audited consolidated
financial statements of the Company and its Consolidated Subsidiaries delivered
to the Banks.
ARTICLE II
The Credits
Section 2.01. Commitments to Lend. (a) During the Revolving Credit Period
each Bank severally agrees, on the terms and conditions set forth in this
Agreement, to lend to the Borrowers severally pursuant to this Section from time
to time amounts such that the Dollar Amount of the aggregate principal amount of
all Syndicated Loans by such Bank outstanding to all Borrowers on the date of
any such Borrowing shall not exceed the amount of its Commitment. Each Borrowing
under this subsection (a) shall be in an aggregate principal amount of
$50,000,000 (or the Approximate Equivalent Amount
33
thereof) or any larger multiple of $5,000,000 (or the Approximate Equivalent
Amount thereof) (except that, subject to the provisions of Section 3.02(ii), any
such Borrowing may be in the aggregate amount of the unused Commitments or the
Equivalent Amount thereof) and shall be made from the several Banks ratably in
proportion to their respective Commitments. Within the foregoing limits, each
Borrower may borrow under this subsection, repay, or to the extent permitted by
Section 2.11, prepay Loans and reborrow at any time during the Revolving Credit
Period under this subsection.
(b) Each Bank severally agrees to make Euro-Currency Loans in the Agreed
Currencies; provided that, after giving effect to such Borrowing, the
Euro-Currency Loans shall be denominated in not more than six Agreed Currencies
(including Dollars).
Section 2.02. Notice of Syndicated Borrowings. Each Borrower shall give the
Agent notice (a "Notice of Syndicated Borrowing") not later than (w) 12:00 noon,
New York City time, on the Domestic Business Day of each Base Rate Borrowing,
(x) 12:00 noon, New York City time, the next Domestic Business Day before each
CD Borrowing (or the second Domestic Business Day before any CD Borrowing for
which a 360 day Interest Period is requested), (y) 12:00 noon, New York City
time, in the case of a Euro-Currency Borrowing to be made in Dollars, the third
Euro-Currency Business Day before each such Euro-Currency Borrowing (or the
fourth Euro-Currency Business Day before any such Euro-Currency Borrowing for
which a 9 or 12 month Interest Period is requested) and (z) 12:00 noon, New York
City time, in the case of a Euro-Currency Borrowing to be made in an Agreed
Currency other than Dollars, the fourth Euro-Currency Business Day before each
such Euro-Currency Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic Business Day in
the case of a Domestic Borrowing or a Euro-Currency Business Day in the case
of a Euro-Currency Borrowing,
(ii) the aggregate amount of such Borrowing; provided that, in any period
of five consecutive Domestic Business Days, the aggregate Dollar Amounts of
all Syndicated Borrowings and all Money Market Borrowings in Canadian dollars
and French francs as of the respective dates of Borrowing shall not exceed
$300,000,000 in each such currency,
(iii) whether the Loans comprising such Borrowing are to bear interest
initially at the Base Rate, a CD Rate or a Euro-Currency Rate and, if at a
Euro-Currency Rate, the currency thereof in accordance with the provisions of
Section 2.01(c) and
(iv) in the case of a Fixed Rate Borrowing, the duration of the Interest
Period applicable thereto, subject to the provisions of the definition of
Interest Period and provided that deposits in the currency of such Borrowing
are being offered for such Interest Period to the Euro-Currency Reference
Banks in the London interbank market.
34
Section 2.03. Money Market Borrowings. (a) In addition to Syndicated
Borrowings pursuant to Section 2.01, each Borrower may, as set forth in this
Section, request the Banks (or, if the Borrower has requested Money Market
Quotes only from Qualifying Banks pursuant to subsection (b)(iii) of this
Section, the Qualifying Banks) during the Revolving Credit Period to make offers
to make Money Market Loans to such Borrower. The Banks may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section.
(b) When a Borrower wishes to request offers to make Money Market Loans under
this Section, it shall transmit to the Agent by telex or facsimile transmission
a Money Market Quote Request substantially in the form of Exhibit B hereto so as
to be received no later than (x) 10:00 a.m., London time, on the fifth
Euro-Currency Business Day prior to the date of Borrowing proposed therein, in
the case of a LIBOR Auction in a Designated Currency other than Dollars, (y)
11:00 a.m., New York City time, on the fourth Euro-Currency Business Day prior
to the date of Borrowing proposed therein, in the case of a LIBOR Auction in
Dollars or (z) 11:00 a.m., New York City time, on the next Domestic Business
Day before the date of Borrowing proposed therein, in the case of an Absolute
Rate Auction (or, in any such case, such other time and date as such Borrower
and the Agent shall have mutually agreed and shall have notified to the Banks
not later than the date of the Money Market Quote Request for the first LIBOR
Auction or Absolute Rate Auction for which such change is to be effective),
specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Currency
Business Day in the case of a LIBOR Auction or a Domestic Business Day in the
case of an Absolute Rate Auction;
(ii) the proposed currency of such Borrowing, which shall be a Designated
Currency in the case of a LIBOR Auction or Dollars in the case of an Absolute
Rate Auction; provided that after giving effect to such Borrowing, the
outstanding Loans shall be denominated in not more than six Designated
Currencies (including Dollars);
(iii) if the Borrower is a Foreign Subsidiary Borrower and will realize a
tax benefit (or avoid a tax or reimbursement liability) with respect to Loans
made by Qualifying Banks but not with respect to Loans made by other Banks,
whether the Money Market Quotes are being requested from all of the Banks or
only from Qualifying Banks,
(iv) the aggregate amount of such Borrowing, which shall be at least
$50,000,000 (or the Approximate Equivalent Amount thereof) or a larger
multiple of $5,000,000 (or the Approximate Equivalent Amount thereof);
provided that the Dollar Amount of such Borrowing shall not be more than the
then aggregate amount of the Commitments and, in any period of five
consecutive Domestic Business Days,
35
the aggregate Dollar Amount of all Syndicated Borrowings and all Money Market
Borrowings in Canadian dollars and French francs as of the respective dates of
Borrowing shall not exceed $300,000,000 in each such currency;
(v) the duration of the Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period; and
(vi) whether the Money Market Quotes requested are to set forth a Money
Market Margin or a Money Market Absolute Rate.
Such Borrower may request offers to make Money Market Loans for more than one
Interest Period but not more than one currency in a single Money Market Quote
Request. No Money Market Quote Request shall be given within five Euro-Currency
Business Days (or such other number of days as the Borrower and the Agent may
agree) of any other Money Market Quote Request.
(c) Promptly upon receipt of a Money Market Quote Request, the Agent shall
send to the Banks (or, if the Borrower has requested Money Market Quotes only
from Qualifying Banks pursuant to subsection (b)(iii) of this Section, to the
Qualifying Banks) by telex or facsimile transmission an Invitation for Money
Market Quotes substantially in the form of Exhibit C hereto, which shall
constitute an invitation by such Borrower to each Bank to submit Money Market
Quotes offering to make the Money Market Loans to which such Money Market Quote
Request relates in accordance with this Section.
(d)(i) Each Bank (or, if the Borrower has requested Money Market Quotes only
from Qualifying Banks pursuant to subsection (b)(iii) of this Section, each
Qualifying Bank) may submit a Money Market Quote containing an offer or offers
to make Money Market Loans in response to any Invitation for Money Market
Quotes. Each Money Market Quote must comply with the requirements of this
subsection and must be submitted to the Agent by telex or facsimile transmission
at its offices specified in or pursuant to Section 10.01 not later than (x) 3:00
p.m., London time, on the fourth Euro-Currency Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction in a Designated
Currency other than Dollars, (y) 10:00 a.m., New York City time, on the third
Euro-Currency Business Day prior to the proposed date of Borrowing, in the case
of a LIBOR Auction in Dollars, or (z) 9:30 a.m., New York City time, on the
proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in any
such case, such other time and date as such Borrower and the Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective); provided that Money Market
Quotes submitted by the Agent (or any affiliate of the Agent) in the capacity of
a Bank may be submitted, and may only be submitted, if the Agent or such
affiliate notifies such Borrower of the terms of the offer or offers contained
therein not later than (A) 2:00 p.m., London time, on the fourth Euro-Currency
Business Day prior to the proposed date of Borrowing, in the case
36
of a LIBOR Auction in a Designated Currency other than Dollars, (B) 9:30 a.m.,
New York City time, on the third Euro-Currency Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction in Dollars, or (C)
9:15 a.m., New York City time, on the proposed date of Borrowing, in the case of
an Absolute Rate Auction. Subject to Articles III and VI, any Money Market Quote
so made shall be irrevocable except with the written consent of the Agent given
on the instructions of such Borrower.
(ii) Each Money Market Quote shall be in substantially the form of Exhibit D
hereto and shall in any case specify:
(A) the proposed date of Borrowing and, in the case of a LIBOR Auction,
the proposed currency of such Borrowing;
(B) the principal amount of each Money Market Loan for which each such
offer is being made, (w) the Dollar Amount of which principal amount may be
greater or less than the Commitment of the quoting Bank, (x) which principal
amount must be $5,000,000 (or the Approximate Equivalent Amount thereof) or a
larger multiple of $1,000,000 (or the Approximate Equivalent Amount thereof),
(y) which principal amount may not exceed in the aggregate with the other
Money Market Loans included in such offer the principal amount of Money
Market Loans for which offers were requested and (z) which principal amount
may be subject to an aggregate limitation as to the principal amount of Money
Market Loans for which offers being made by such quoting Bank may be
accepted;
(C) the duration of the Interest Period applicable to each Money Market
Loan for which each such offer is being made, subject to the provisions of
the definition of Interest Period;
(D) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin") offered
for each such Money Market Loan, expressed as a percentage (rounded to the
nearest 1/10,000th of 1%) to be added to or subtracted from such base rate;
(E) in the case of an Absolute Rate Auction, the rate of interest per
annum (rounded to the nearest 1/10,000th of 1%) (the "Money Market Absolute
Rate") offered for each such Money Market Loan;
(F) the identity of the quoting Bank; and
(G) if the Borrower has requested Money Market Quotes only from
Qualifying Banks pursuant to subsection (b)(iii) of this Section, a
representation and warranty from the quoting Bank that it is a Qualifying
Bank.
(iii) Any Money Market Quote shall be disregarded that:
37
(A) is not substantially in the form of Exhibit D hereto or does not
specify all of the information required by subsection (d)(ii) of this
Section;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth in the
applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i) of this
Section.
(e) The Agent shall promptly notify such Borrower of the terms (i) of any
Money Market Quote submitted by a Bank that is in accordance with subsection (d)
of this Section and (ii) of any subsequent Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request;
provided that any such subsequent Money Market Quote shall be disregarded by the
Agent unless such subsequent Money Market Quote is submitted solely to correct a
manifest error in such former Money Market Quote. The Agent's notice to such
Borrower shall specify (x) the aggregate principal amount and currency of Money
Market Loans for which offers have been received for each Interest Period
specified in the related Money Market Quote Request, (y) the respective
principal amounts and Money Market Margins or Money Market Absolute Rates, as
the case may be, so offered and (z) if applicable, limitations on the aggregate
principal amount of Money Market Loans for which offers in any single Money
Market Quote may be accepted.
(f) Not later than (x) 5:00 p.m., London time, on the fourth Euro-Currency
Business Day prior to the proposed date of Borrowing, in the case of a LIBOR
Auction in a Designated Currency other than Dollars, (y) 11:15 a.m., New York
City time, on the third Euro-Currency Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction in Dollars, or (z) 10:30 a.m., New
York City time, on the proposed date of Borrowing, in the case of an Absolute
Rate Auction (or, in any such case, such other time and date as such Borrower
and the Agent shall have mutually agreed and shall have notified to the Banks
not later than the date of the Money Market Quote Request for the first LIBOR
Auction or Absolute Rate Auction for which such change is to be effective), such
Borrower shall notify the Agent of its acceptance or non-acceptance of the
offers so notified to it pursuant to subsection (e) of this Section. In the case
of acceptance, such notice (a "Notice of Money Market Borrowing") shall specify
the aggregate principal amount of offers for each Interest Period that are
accepted. Such Borrower may accept any Money Market Quote in whole or in part;
provided that:
(i) the aggregate principal amount of each Money Market Borrowing may not
exceed the applicable amount set forth in the related Money Market Quote
Request;
38
(ii) the principal amount of each Money Market Borrowing must be at least
$50,000,000 (or the Approximate Equivalent Amount thereof) or a larger
multiple of $5,000,000 (or the Approximate Equivalent Amount thereof);
provided that the Dollar Amount of such Borrowing shall not be more than the
then aggregate amount of the Commitments;
(iii) acceptance of offers may only be made on the basis of ascending
Money Market Margins or Money Market Absolute Rates, as the case may be; and
(iv) such Borrower may not accept any offer that is described in
subsection (d)(iii) of this Section or that otherwise fails to comply with
the requirements of this Agreement.
(g) If offers are made by two or more Banks with the same Money Market
Margins or Money Market Absolute Rates, as the case may be, for a greater
aggregate principal amount of Money Market Loans than can be accepted for the
related Interest Period (after giving effect to the acceptance of all lower
Money Market Margins or Money Market Absolute Rates, as the case may be,
properly offered for such Interest Period), the principal amount of Money Market
Loans which can be accepted shall be allocated by the Agent among such Banks as
nearly as possible (in such multiples of $1,000,000 (or the Approximate
Equivalent Amount thereof), as the Agent may deem appropriate) in proportion to
the aggregate principal amount of such offers. Determinations by the Agent of
the amounts of Money Market Loans by each Bank shall be conclusive in the
absence of manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans. (a) Upon receipt of a
Notice of Borrowing, the Agent shall promptly notify each Bank of the contents
thereof and of such Bank's ratable share (if any) of such Borrowing and such
Notice of Borrowing shall not thereafter be revocable by the Borrower giving
such notice except pursuant to subsection (c) of this Section or Section
8.01(a).
(b) On the date of each Borrowing, each Bank participating therein shall
make available its ratable share of such Borrowing, (i) if such Borrowing is
denominated in Dollars, not later than 12:00 noon, New York City time (or, in
the case of any Borrowing of Base Rate Loans, 1:00 p.m., New York City time), in
Federal or other funds immediately available to the Agent, in New York City at
its address specified in or pursuant to Section 10.01 and (ii) if such Borrowing
is denominated in another currency, not later than 12:00 noon, local time in the
city of the Agent's Euro-Currency Payment Office for such currency, in such
funds as may then be customary for the settlement of international transactions
in such currency in the city of and at the address of the Agent's Euro-Currency
Payment Office for such currency. Unless the Agent determines that any
applicable condition specified in Article III has not been satisfied, the Agent
will make the funds so received from the Banks available to the Borrower making
such Borrowing at the Agent's aforesaid address.
39
(c) Notwithstanding the satisfaction of all conditions referred to in
Section 2.01(c), 2.02 or 2.03(b) with respect to any Borrowing in any currency
other than Dollars, if there shall occur on or prior to the date of such
Borrowing any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which would
in the opinion of the Agent make it impracticable for the Euro-Currency Loans or
Money Market LIBOR Loans comprising such Borrowing to be denominated in the
currency specified by the Borrower, then the Agent shall forthwith give notice
thereof to the Borrower and the Banks, and such Loans shall not be denominated
in such currency but shall be made on the date of such Borrowing in Dollars, in
an aggregate principal amount equal to the Dollar Amount of the aggregate
principal amount specified in the related Notice of Borrowing, as Base Rate
Loans, unless the Borrower notifies the Agent at least one Domestic Business Day
before such date that it elects not to borrow on such date.
Section 2.05. Notes. (a) Each Bank may, by notice to a Borrower and the
Agent (to be given not later than two Domestic Business Days prior to the
initial Borrowing) request either that (i) its Loans be evidenced by a single
Note of such Borrower payable to the order of such Bank for the account of its
Applicable Lending Office in an amount equal to the aggregate unpaid principal
amount of such Bank's Loans to such Borrower or (ii) its Loans of a particular
type to such Borrower be evidenced by a separate Note of such Borrower in an
amount equal to the aggregate unpaid principal amount of such Loans to such
Borrower. Except as so requested by a Bank and to the extent a Note is issued by
a Borrower pursuant to this Section 2.05, Loans made by such Bank are not
represented or evidenced by any promissory note.
(b) Each Note issued pursuant to this Section 2.05 shall be in substantially
the form of Exhibit A hereto with appropriate modifications, if such Note
evidences solely Loans of a particular type, to reflect such fact. Each
reference in this Agreement to a "Note" or the "Notes" of such Bank shall be
deemed to refer to and include any or all of such Notes of each Borrower, as the
context may require.
(c) Upon receipt of each Note of a Borrower (if any) pursuant to Section
3.01(vi), the Agent shall send such Note to the relevant Bank. Each Bank shall
record, and may, if such Bank so elects in connection with any transfer or
enforcement of its Note of any Borrower, endorse on the schedule forming a part
thereof appropriate notations to evidence the date, currency, amount and
maturity of each Loan made by it to such Borrower and the date and amount of
each payment of principal made by such Borrower with respect thereto; provided
that the failure of any Bank to make any such recordation or endorsement shall
not affect the obligations of such Borrower hereunder or under its Note. Each
Bank is hereby irrevocably authorized by each Borrower so to endorse such
Borrower's Note and to attach to and make a part of any such Note a continuation
of any such schedule as and when required.
40
SECTION 2.06. Method of Electing Interest Rates. (a) The Loans included in
each Syndicated Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of Syndicated Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject in each case to the
provisions of Article VIII), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to convert
such Loans to CD Loans as of any Domestic Business Day or to Euro-Currency
Loans as of any Euro-Currency Business Day;
(ii) if such Loans are CD Loans, the Borrower may elect to convert such
Loans to Base Rate Loans or Euro-Currency Loans or elect to continue such
Loans as CD Loans for an additional Interest Period, subject to Section 2.13
in the case of any such conversion or continuation effective on any day other
than the last day of the then current Interest Period applicable to such
Loans; and
(iii) if such Loans are Euro-Currency Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or CD Loans or elect to continue such
Loans as Euro-Currency Loans for an additional Interest Period, subject to
Section 2.13 in the case of any such conversion or continuation effective on
any day other than the last day of the then current Interest Period
applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Agent not later than (w) 12:00 noon, New York City time,
on the Domestic Business Day of any conversion into or continuation as Base Rate
Loans, (x) 12:00 noon, New York City time, the next Domestic Business Day before
any conversion into or continuation as CD Loans (or the second Domestic Business
Day before any CD Loans for which a 360 day Interest Period is requested), (y)
12:00 noon, New York City time, on the third Euro-Currency Business Day before
any conversion into or continuation as Euro-Currency Loans (or the fourth Euro-
Currency Business Day before any such conversion into or continuation as Euro-
Currency Loans for which a 9 or 12 month Interest Period is requested) and (z)
12:00 noon, New York City time, on the fourth Euro-Currency Business Day before
any conversion into or continuation as Euro-Currency Loans in an Agreed Currency
other than Dollars. A Notice of Interest Rate Election may, if it so specifies,
apply to only a portion of the aggregate principal amount of the relevant Group
of Loans; provided that (i) such portion is allocated ratably among the Loans
--------
comprising such Group and (ii) the portion to which such Notice applies, and the
remaining portion to which it does not apply, are each $50,000,000 or any larger
multiple of $5,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice applies;
41
(ii) the date on which the conversion or continuation selected in such
notice is to be effective, which shall comply with the applicable clause of
subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the new
type of Loans (including the currency thereof) and, if the Loans being
converted are to be Fixed Rate Loans, the duration of the next succeeding
Interest Period applicable thereto; and
(iv) if such Loans are to be continued as CD Loans or Euro-Currency Loans
in the same currency for an additional Interest Period, the duration of such
additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the Borrower
pursuant to subsection (a) above, the Agent shall promptly notify each Bank of
the contents thereof and such notice shall not thereafter be revocable by the
Borrower. If the Borrower fails to deliver a timely Notice of Interest Rate
Election to the Agent for any Group of Fixed Rate Loans, such Loans shall be
converted into Base Rate Loans on the last day of the then current Interest
Period applicable thereto.
(d) An election by the Borrower to change or continue the rate of interest
applicable to any Group of Loans pursuant to this Section 2.06 shall not
constitute a "Borrowing" for purposes of the provisions of Section 3.02 or
otherwise.
Section 2.07. Interest Rates. (a) Each Base Rate Loan shall bear interest on
the outstanding principal amount thereof, for each day from the date such Loan
is made until the last day of each Interest Period applicable thereto, at a rate
per annum equal to the Base Rate for such day. Such interest shall be payable
for each Interest Period on the last day thereof and, with respect to the
principal amount of any Base Rate Loan converted to a CD Loan or a Euro-Currency
Loan, on each date a Base Rate Loan is so converted. Any overdue principal of or
interest on any Base Rate Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of 1% plus the rate
otherwise applicable to Base Rate Loans for such day.
(b) Each CD Loan shall bear interest on the outstanding principal amount
thereof, for each day during each Interest Period applicable thereto, at a rate
per annum equal to the sum of the CD Margin for such day plus the Adjusted CD
Rate applicable to such Interest Period; provided that if any CD Loan or any
portion thereof shall, as a result of clause (2)(b) of the definition of
Interest Period, have an Interest Period of less than 30 days, such portion
shall bear interest during such Interest Period at the rate applicable to Base
Rate Loans during such period. Such interest shall be payable for each Interest
42
Period on the last day thereof and, if such Interest Period is longer than 90
days, at intervals of 90 days after the first day thereof. Any overdue principal
of or interest on any CD Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of 1% plus the sum of the
CD Margin plus the Adjusted CD Rate applicable to such Loan at the date such
payment was due.
The "Fixed CD Rate" applicable to any Interest Period means a rate per annum
equal to the sum of the CD Margin plus the applicable Adjusted CD Rate.
The "Adjusted CD Rate" applicable to any Interest Period means a rate per
annum determined pursuant to the following formula:
{ CDBR }*
ACDR = {----------} + AR
{1.00 - DRP}
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
----------------
* The amount in brackets being rounded upwards, if necessary, to the next higher
1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate of interest
determined by the Agent to be the arithmetic average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum
bid at 10:00 a.m., New York City time (or as soon thereafter as practicable), on
the first day of such Interest Period by two or more New York certificate of
deposit dealers of recognized standing for the purchase at face value from each
CD Reference Bank of its certificates of deposit in an amount comparable to the
unpaid principal amount of the CD Loan of such CD Reference Bank to which such
Interest Period applies and having a maturity comparable to such Interest
Period.
"Domestic Reserve Percentage" means for any day that percentage (expressed
as a decimal which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including without limitation any basic,
supplemental or emergency reserves) for a member bank of the Federal Reserve
System in New York City with deposits exceeding five billion dollars in respect
of new non-personal time deposits in dollars in New York City having a maturity
comparable to the related Interest Period and in an amount of $100,000 or more.
The Fixed CD Rate shall be adjusted automatically on and as of the effective
date of any change in the Domestic Reserve Percentage.
43
"Assessment Rate" means for any day the annual assessment rate in effect on
such day which is payable by a member of the Bank Insurance Fund classified as
adequately capitalized and within supervisory subgroup "A" (or a comparable
successor assessment risk classification) within the meaning of 12 C.F.R. (S)
327.3(e) (or any successor provision) to the Federal Deposit Insurance
Corporation (or any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the United States. The
Adjusted CD Rate shall be adjusted automatically on and as of the effective date
of any change in the Assessment Rate.
(c) Each Euro-Currency Loan shall bear interest on the outstanding principal
amount thereof, for each day during each Interest Period applicable thereto, at
a rate per annum equal to the sum of the Euro-Currency Margin for such day plus
the London Interbank Offered Rate applicable to such Interest Period. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
The "London Interbank Offered Rate" applicable to any Interest Period for any
Loan shall mean the average (rounded upward, if necessary, to the next higher
1/16 of 1%) of the respective rates per annum at which deposits in the currency
in which such Loan is denominated are offered to each of the Euro-Currency
Reference Banks in the London interbank market at approximately 11:00 a.m.,
London time, two Euro-Currency Business Days before the first day of such
Interest Period, in an amount approximately equal to the principal amount of the
Loan of such Euro-Currency Reference Bank to which such Interest Period is to
apply and for a period of time comparable to such Interest Period.
(d) Any overdue principal of or interest on any Euro-Currency Loan shall bear
interest, payable on demand, for each day from and including the date payment
thereof was due to but excluding the date of actual payment, at a rate per annum
equal to the sum of 1% plus the Euro-Currency Margin for such day plus the
average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which one day (or, if such amount due remains
unpaid more than three Euro-Currency Business Days, then for such other period
of time not longer than three months as the Agent may elect) deposits in the
relevant currency in an amount approximately equal to such overdue payment due
to each of the Euro-Currency Reference Banks are offered to such Euro-Currency
Reference Bank in the London interbank market for the applicable period
determined as provided above (or, if the circumstances described in clause (a)
or (b) of Section 8.01 shall exist, at a rate per annum equal to the sum of (i)
if such Euro-Currency Loan is denominated in Dollars, 1% plus the rate
applicable to Base Rate Loans for such day and (ii) if such Euro-Currency Loan
is denominated in any other currency, 1% plus the cost to such Bank of funding
or maintaining such Euro-Currency Loan. The certificate of such Bank as to the
cost of funding or maintaining such Euro-Currency Loan shall be conclusive
absent manifest error).
44
(e) Subject to Section 8.01(a)(1), each Money Market LIBOR Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in accordance with subsection
(c) of this Section as if each Euro-Currency Reference Bank were to participate
in the related Money Market Borrowing ratably in proportion to its Commitment)
plus (or minus) the Money Market Margin quoted by the Bank making such Loan in
accordance with Section 2.03. Each Money Market Absolute Rate Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the Money Market Absolute Rate
quoted by the Bank making such Loan in accordance with Section 2.03. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than three months, at intervals of three
months after the first day thereof. Any overdue principal of and, to the extent
permitted by law, overdue interest on any Money Market Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the sum
of (i) if such Money Market Loan is denominated in Dollars, 1% plus the rate
applicable to Base Rate Loans for such day and (ii) if such Money Market Loan is
denominated in any other currency, 1% plus the cost to such Bank of funding or
maintaining such Money Market Loan. The certificate of such Bank certifying the
cost of funding or maintaining such Money Market Loan shall be conclusive absent
manifest error.
(f) The Agent shall determine each interest rate applicable to the Loans
hereunder. The Agent shall give prompt notice to the appropriate Borrower and
the participating Banks by telex or cable of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(g) Each Reference Bank agrees to use its best efforts to furnish quotations
to the Agent as contemplated by this Section. If any Reference Bank does not
furnish a timely quotation, the Agent shall determine the relevant interest
rate on the basis of the quotation or quotations furnished by the remaining
Reference Bank or Banks or, if none of such quotations is available on a timely
basis, the provisions of Section 8.01 shall apply.
(h) Each of "CD Margin", "Euro-Currency Margin" and "Facility Fee Rate"
means, for any day, the amounts set forth below in the row opposite such term
and in the column corresponding to the Pricing Level that applies on such day:
45
---------------------------------------------------------------------------------
Level I Level II Level III Level IV
Pricing Pricing Pricing Pricing
---------------------------------------------------------------------------------
Euro-Currency 0.120% 0.160% 0.300% 0.500%
Margin
---------------------------------------------------------------------------------
CD Margin 0.245% 0.285% 0.425% 0.625%
---------------------------------------------------------------------------------
Facility Fee Rate 0.080% 0.090% 0.150% 0.250%
---------------------------------------------------------------------------------
As used herein, the following terms have the following meanings:
"Level I Pricing" applies on any date if, on such date, the Company's Long-
Term Debt is rated (x) AA- or higher by S&P or Aa3 or higher by Moody's and (y)
-- ---
not less than A- by S&P and not less than A3 by Moody's.
---
"Level II Pricing" applies on any date if, on such date, (i) the Company's
Long-Term Debt is rated (x) A- or higher by S&P or A3 by Moody's and (y) not
-- ---
less than BBB- by S&P and not less than Baa3 by Moody's and (ii) Level I Pricing
---
does not apply.
"Level III Pricing" applies on any date if, on such date, (i) the Company's
Long-Term Debt is rated BBB- or higher by S&P or Baa3 or higher by Moody's and
--
(ii) neither Level I nor Level II Pricing applies.
"Level IV Pricing" applies on any date if, on such date, none of Level I,
Level II and Level III Pricing applies.
"Long-Term Debt" means the senior unsecured public long-term debt securities
of the Borrower without third-party credit enhancement.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Pricing Level" refers to the determination of which of Level I, Level II,
Level III or Level IV Pricing applies on any date.
"S&P" means Standard & Poor's Ratings Group.
Section 2.08. Fees. (a) The Company shall pay to the Agent for the account of
the Banks ratably a facility fee at the Facility Fee Rate for such day. Such
facility fee shall accrue (i) from and including the date upon which this
Agreement becomes effective pursuant to Section 10.06 hereof to but excluding
the date of termination of the Commitments in their entirety, on the daily
aggregate amount of the Commitments (whether used or unused) and (ii) from and
including such date of termination to but
46
excluding the date the Loans shall be repaid in their entirety, on the daily
aggregate outstanding principal amount of the Loans.
(b) The Company shall pay to the Agent for its own account fees in the
amounts and at the times previously agreed upon between the Company and the
Agent.
(c) Accrued fees under subsection (a) of this Section shall be payable
quarterly in appears on the fifth Domestic Business Day after each Quarterly
Date for the quarter ending on such Quarterly Date or, if earlier, the fifth
Domestic Business Day after the date of termination of the Commitments in their
entirety, and on the fifth Domestic Business Day after the date on which the
Loans shall be repaid in their entirety.
Section 2.09. Optional Termination or Reduction of Commitments. The Company
may, upon at least three Domestic Business Days' irrevocable notice to the
Agent, terminate at any time, or reduce from time to time by an aggregate amount
of $50,000,000 or a larger multiple of $5,000,000 the aggregate amount of the
Commitments in excess of the Dollar Amount of the aggregate outstanding
principal amount of the Loans.
Section 2.10. Maturity of Loans; Mandatory Termination of Commitments. (a)
The Commitments shall terminate on the Commitment Termination Date, and any
Syndicated Loans then outstanding (together with accrued interest thereon)
shall be due and payable on such date.
(b) The outstanding principal balance of each Money Market Loan shall be
payable on the last day of the Interest Period applicable to such Loan.
(c) On the last day of each Interest Period, the Company shall repay, or
cause one or more Subsidiary Borrowers to repay, such principal amount (together
with accrued interest thereon) of each Bank's outstanding Syndicated Loans, if
any, as may be necessary so that after such repayment the Dollar Amount of the
aggregate outstanding principal amount of all Loans outstanding hereunder does
not exceed the amount of the Commitments on such day.
Section 2.11. Optional Prepayments. (a) Each Borrower may, upon at least one
Domestic Business Day's notice to the Agent, prepay any Group of Base Rate Loans
(or any Money Market LIBOR Loans bearing interest at the Base Rate pursuant to
Section 8.01(a)) or, subject to Section 2.13 and upon at least three
Euro-Currency Business Days' notice to the Agent, prepay any Group of CD or
Euro-Currency Loans in whole at any time, or from time to time in part in
amounts aggregating $50,000,000 (or the Approximate Equivalent Amount thereof)
or any larger multiple of $1,000,000 (or the Approximate Equivalent Amount
thereof), by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such optional prepayment shall
be applied to prepay ratably the Loans of the several Banks included
47
in such Group. No Borrower may prepay all or any portion of the principal amount
of any Money Market Loan (other than a Money Market LIBOR Loan bearing interest
at the Base Rate pursuant to Section 8.01(a)) prior to the maturity thereof.
(b) Upon receipt of a notice of prepayment pursuant to this Section, the
Agent shall promptly notify each Bank of the contents thereof and of such Bank's
ratable share (if any) of such prepayment and such notice shall not thereafter
be revocable by any Borrower.
Section 2.12. General Provisions as to Payments. (a) All payments to be made
by each Borrower hereunder or under the Notes in Dollars shall be made not later
than 12:00 noon, New York City time, on the date when due, in Federal or other
funds immediately available in New York City, to the Agent at its address
referred to in Section 10.01. The Agent will promptly distribute to each Bank
its ratable share of each such payment received by the Agent for the account of
the Banks.
(b) Each Borrowing shall be repaid or prepaid in the currency in which it was
made in the amount borrowed and interest payable thereon shall be paid in such
currency. All payments to be made by each Borrower hereunder or under the Notes
in any currency other than Dollars shall be made in such currency on the date
due in such funds as may then be customary for the settlement of international
transactions in such currency for the account of the Agent, at its Euro-Currency
Payment Office for such currency. The Agent will promptly cause such payments to
be distributed to each Bank in like funds and currency. Notwithstanding the
foregoing provisions of this Section, if, after the making of any Loan in any
currency other than Dollars, currency control or exchange regulations are
imposed in the country which issues such currency with the result that different
types of such currency (the "New Currency") are introduced and the type of
currency in which the Borrowing was made (the "Original Currency") no longer
exists or the Borrower is not able to make payment to the Agent for the account
of the Banks in such Original Currency, then all payments to be made by each
Borrower hereunder or under the Notes in such currency shall be made in such
amount and such type of the New Currency as shall be equivalent to the amount
of such payment otherwise due hereunder or under the Notes in the Original
Currency, it being the intention of the parties hereto that the Borrowers take
all risks of the imposition of any such currency control or exchange
regulations.
(c) Whenever any payment of principal of, or interest on, the Domestic Loans
or of additional compensation shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Currency Loans shall be due on a day which is not a
Euro-Currency Business Day, the date for payment thereof shall be extended to
the next succeeding Euro-Currency Business Day unless such Euro-Currency
Business Day occurs in another calendar month, in which case the date for
payment thereof shall be the next preceding Euro-Currency Business Day. Whenever
48
any payment of principal of, or interest on, the Money Market Loans shall be due
on a day which is not a Euro-Currency Business Day, the date for payment thereof
shall be extended to the next succeeding Euro-Currency Business Day. If the date
for any payment of principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
(d) Unless the Agent shall have been notified by a Bank or a Borrower (the
"Payor") prior to the date on which such Bank is to make payment to the Agent of
the proceeds of a Loan to be made by it hereunder or such Borrower is to make a
payment to the Agent for the account of one or more of the Banks, as the case
may be (each of such payments being herein called a "Required Payment"), which
notice shall be effective upon receipt, that the Payor does not intend to make
the Required Payment to the Agent, the Agent may assume that the Required
Payment has been made and may (but shall not be required to), in reliance upon
such assumption, make the amount thereof available to the intended recipient on
such date and, if the Payor has not in fact made the Required Payment to the
Agent, the recipient of such payment shall, on demand, pay to the Agent the
amount made available to it together with interest thereon in respect of the
period commencing on the date such amount was so made available by the Agent
until the date the Agent recovers such amount at the Federal Funds Rate, if the
recipient is a Bank, and at a rate equal to the rate which, if the recipient is
a Borrower, the recipient would have been obligated to pay hereunder for the
Loans that are the subject of, or are equivalent to, such payment for such
period.
Section 2.13. Funding Losses. Each Borrower shall pay to the Agent for the
account of each Bank, upon the request of such Bank through the Agent, such
amount or amounts as shall compensate such Bank for any reasonable loss, cost or
expense incurred by such Bank (or, subject to Section 10.07(b), by an existing
or prospective Participant in the related Loan) as a result of:
(a) any prepayment of a Fixed Rate Loan or any conversion of a Fixed Rate
Loan of such Borrower (pursuant to Section 2.06 or 2.11, Article VI or VIII or
otherwise) held by such Bank on a date before the last day of an Interest Period
applicable thereto, or before the end of an applicable period fixed pursuant to
Section 2.07(d) or
(b) any failure by such Borrower to borrow a Fixed Rate Loan (except to the
extent any Bank shall fail to make funds available to the Borrower in accordance
with this Agreement, but including a failure to borrow due to the occurrence of
any event described in Section 2.04(c)) held or to be held by such Bank on the
date for such Borrowing specified in the relevant Notice of Borrowing under
Section 2.02 or 2.03(f),
such compensation to be payable in the currency specified in the certificate
referred to below and to include, without limitation, an amount equal to the
excess, if any, of (i) the amount of interest which would have accrued on the
amount so prepaid, converted or not borrowed, for the period from the date of
such prepayment or failure to borrow to the
49
last day of such Interest Period (or, in the case of a failure to borrow, the
Interest Period for such Fixed Rate Loan which would have commenced on the date
of such failure to borrow) in each case at the applicable rate of interest for
such Fixed Rate Loan provided for herein (excluding, however, the CD Margin, the
Euro-Currency Margin or any positive Money Market Margin, as the case may be,
included therein) over (ii) the amount of interest (as reasonably determined by
such Bank) which would have accrued to such Bank on such amount by placing such
amount on deposit for a comparable period with leading banks in the London
interbank market or in the New York certificate of deposit market; provided that
such Bank shall have delivered to such Borrower, within 60 days after the date
of such prepayment, conversion or failure to borrow, a certificate as to the
amount and currency of such loss or expense, which certificate shall set forth
in reasonable detail the basis for such loss or expense and shall be conclusive
in the absence of manifest error.
Section 2.14. Computation of Interest and Fees. Interest based on the Prime
Rate and interest on Borrowings denominated in pounds sterling shall be computed
on the basis of a year of 365 days (or 366 days in a leap year) and paid for the
actual number of days elapsed (including the first day but excluding the last
day). All other interest and fees shall be computed on the basis of a year of
360 days and paid for the actual number of days elapsed (including the first day
but excluding the last day).
Section 2.15. Judgment Currency. If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due from a Borrower hereunder or
under any of the Notes in the currency expressed to be payable herein or under
the Notes (the "specified currency") into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Agent could purchase the specified currency with such other
currency at the Agent's New York office on the Euro-Currency Business Day
preceding that on which final, non-appealable judgement is given. The
obligations of the Borrower in respect of any sum due to any Bank or the Agent
hereunder or under any Note shall, notwithstanding any judgment in a currency
other than the specified currency, be discharged only to the extent that on the
Euro-Currency Business Day following receipt by such Bank or the Agent (as the
case may be) of any sum adjudged to be so due in such other currency such Bank
or the Agent (as the case may be) may in accordance with normal, reasonable
banking procedures purchase the specified currency with such other currency. If
the amount of the specified currency so purchased is less than the sum
originally due to such Bank or the Agent, as the case may be, in the specified
currency, the Borrower agrees, to the fullest extent that it may effectively do
so, as a separate obligation and notwithstanding any such judgment, to indemnify
such Bank or the Agent, as the case may be, against such loss, and if the amount
of the specified currency so purchased exceeds (a) the sum originally due to any
Bank or the Agent, as the case may be, in the specified currency and (b) any
amounts shared with other Banks as a result of allocations of such excess as a
disproportionate
50
payment to such Bank under Section 10.11, such Bank or the Agent, as the case
may be, agrees to remit such excess to the Borrower.
Section 2.16. Foreign Taxes. (a) All payments made by any Foreign Subsidiary
Borrower in respect of principal of and interest on its Syndicated Borrowings
and of all other amounts payable by it under this Agreement are payable without
deduction for or on account of any present or future taxes, duties, withholdings
or other charges levied or imposed by the government of any jurisdiction outside
the United States of America or by any political subdivision or taxing authority
thereof or therein (herein called "Foreign Taxes"). If any such Foreign
Subsidiary Borrower shall be required by law to deduct or withhold any Foreign
Taxes from any such amount payable by it hereunder or under any of its Notes in
connection with a Syndicated Borrowing to or for the account of any Bank, (i)
such amount shall be increased as may be necessary so that, after making such
deductions or withholdings (including any deductions or withholdings applicable
to additional amounts payable pursuant to this Section), such Bank receives an
amount equal to the amount it would have received had no such deductions or
withholdings been made and (ii) such Foreign Subsidiary Borrower shall make such
deductions and withholdings and pay the amount thereof to the relevant
government, political subdivision or taxing authority at or prior to the time
required to be paid under applicable law (and shall promptly furnish to the
Agent, for the benefit of the Banks, receipts evidencing such payment). In
addition, each such Foreign Subsidiary Borrower will pay any present or future
stamp or documentary taxes or similar taxes or levies imposed by any government,
political subdivision or taxing authority referred to in the first sentence of
this subsection arising from any payment by it hereunder or under any of its
Notes or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any of its Notes (herein called "Other Taxes").
Each such Foreign Subsidiary Borrower will indemnify each Bank and the Agent
for, and hold each Bank and the Agent harmless against, the full amount of
Foreign Taxes in connection with a Syndicated Loan or Other Taxes (including,
without limitation, any Foreign Taxes in connection with a Syndicated Loan or
Other Taxes imposed by any jurisdiction on amounts payable under this Section)
paid or payable by such Bank or the Agent and any liability of such Bank or the
Agent relating thereto (including, without limitation, penalties, interest and
expenses). This indemnification shall be made within 15 days after demand by
such Bank or the Agent (as the case may be).
(b) If the cost to any Bank of making or maintaining any Syndicated Loan to
a Foreign Subsidiary Borrower is increased, or the amount of any sum received or
receivable under a Syndicated Loan by any Bank (or its Applicable Lending
Office) is reduced, by an amount deemed by such Bank to be material, which
increase or reduction would not have occurred but for the fact that such Foreign
Subsidiary Borrower is incorporated in, or conducts business in, a jurisdiction
outside the United States of America, such Foreign Subsidiary Borrower shall
indemnify such Bank for such increased cost or reduction within 15 days after
demand by such Bank (with a copy to the Agent). This Section 2.16(b) shall not
apply to any liabilities with respect to Foreign
51
Taxes or Other Taxes or liabilities which would be Foreign Taxes or Other Taxes
in the absence of the exclusionary language in Section 2.16(c). A certificate of
such Bank claiming indemnification under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error.
(c) Notwithstanding the provisions of clause (a) above, no Foreign Subsidiary
Borrower shall indemnify any Bank for or pay any additional amount or amounts to
any Bank with respect to any tax, assessment or other governmental charge (i)
imposed on, based upon, or measured by income of the Bank and franchise and
similar taxes imposed upon the Bank by any jurisdiction in which such Bank is
incorporated or maintains its principal place of business or Applicable Lending
Office, (ii) imposed as a result of a connection between the taxing jurisdiction
and such Bank (other than a connection resulting solely from the transactions
contemplated by this Agreement), (iii) imposed as a result of the transfer by
such Bank of its interest in any Note or this Agreement or a change (other than
pursuant to this Section 2.16(c)) in its Applicable Lending Office (other than
taxes imposed as a result of any change in treaty, law or regulation after such
transfer of the Bank's interest in any Note or this Agreement or change in the
Bank's Applicable Lending Office), (iv) imposed as a result of a failure of any
Bank to comply fully with the requirements of the last sentence of this Section
2.16(c), or (v) that would not have been imposed but for (A) a failure by such
Bank to comply with applicable certification, information, documentation or
other reporting requirements concerning such Bank if such compliance is required
by statute or regulation of such country as a precondition to relief or
exemption (whether available by statute or tax treaty) from such tax, assessment
or other governmental charge or (B) a determination by a taxing authority or a
court of competent jurisdiction that a certification, information, documentation
or other proof provided by such Bank to establish an exemption from such tax,
assessment or governmental charge is false. Each Bank will promptly notify the
Company, the relevant Foreign Subsidiary Borrowers, and the Agent of any event
of which it has knowledge that will entitle such Bank to any payment or
indemnification under clause (a) or (b) of this Section 2.16. If the Foreign
Subsidiary Borrower is or will be required to pay additional amounts under this
Section 2.16 to or for the account of any Bank, then such Bank will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such payment or indemnification and will not, in the
good faith opinion of such Bank, be otherwise disadvantageous to such Bank.
(d) If, and to the extent that, any Bank shall obtain a credit against its
United States federal income tax liability for any Foreign Taxes or Other Taxes
indemnified or paid by any Foreign Subsidiary Borrower pursuant to this Section,
such Bank agrees to enter into negotiations in good faith with such Foreign
Subsidiary Borrower to determine the basis on which reimbursement of such credit
can be made to such Foreign Subsidiary Borrower.
52
(e) If, and to the extent that, any Bank shall receive a refund of any
Foreign Taxes or other Taxes indemnified or paid by any Foreign Subsidiary
Borrower pursuant to this Section, such Bank shall pay the amount of such refund
(including, without limitation, any interest received with respect thereto) to
such Foreign Subsidiary Borrower.
(f) All tax receipts required to be delivered under this Section shall be
originals, duplicate originals or duly certified or authenticated copies.
Section 2.17. Maximum Interest Rate. (a) Nothing contained in this Agreement
or any Note shall require the Borrower to pay interest at a rate exceeding the
maximum rate permitted by applicable law.
(b) If the amount of interest payable for the account of any Bank on any
interest payment date in respect of the immediately preceding interest
computation period, computed pursuant to Section 2.07, would exceed the maximum
amount permitted by applicable law to be charged by such Bank, the amount of
interest payable for its account on such interest payment date shall be
automatically reduced to such maximum permissible amount.
(c) If the amount of interest payable for the account of any Bank in respect
of any interest computation period is reduced pursuant to clause (b) of this
Section and the amount of interest payable for its account in respect of any
subsequent interest computation period, computed pursuant to Section 2.07, would
be less than the maximum amount permitted by applicable law to be charged by
such Bank, then the amount of interest payable for its account in respect of
such subsequent interest computation period shall be automatically increased to
such maximum permissible amount; provided that at no time shall the aggregate
amount by which interest paid for the account of any Bank has been increased
pursuant to this clause (c) exceed the aggregate amount by which interest paid
for its account has theretofore been reduced pursuant to clause (b) of this
Section.
ARTICLE III
Conditions To Borrowings
Section 3.01. Initial Borrowing by Each Borrower. The obligation of each
Bank to make any Loan to be made by it as part of the initial Borrowing by each
Borrower hereunder is subject to the condition precedent that the Agent shall
have received the following documents:
(i) certified copies of the Certificate of Incorporation and By-Laws of
such Borrower and the resolutions of the Board of Directors of such Borrower
adopted in respect of the transactions contemplated hereby and such other
documents as the Agent or the Required Banks may reasonably request relating
to the existence of
53
such Borrower, the corporate authority for and the validity of this Agreement
and the Notes (if any) of such Borrower, and any other matters relevant hereto,
all in form and substance satisfactory to the Agent;
(ii) a Certificate of Incumbency executed by the Secretary or an Assistant
Secretary of such Borrower in substantially the form of Exhibit E hereto setting
forth the name, title and specimen signature of each Authorized Officer or
Authorized Representative of such Borrower (1) who has signed this Agreement on
behalf of such Borrower, (2) who will sign the Notes (if any) of such Borrower
on behalf of such Borrower or (3) who will, until replaced by another officer or
representative duly authorized for that purpose, act as the representative of
such Borrower for the purposes of signing documents and giving notices and other
communications by such Borrower in connection with this Agreement and the
transactions contemplated hereby;
(iii) an opinion of the General Counsel, a Deputy General Counsel or an
Associate General Counsel of the Company, dated on or prior to the date of such
initial Borrowing, with respect to such Borrower in substantially the form of
Exhibit F hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks may reasonably request;
provided that such opinion need only cover the Notes (if any) of the Company if
such opinion has been previously rendered in all other respects with respect to
the Company pursuant to clause (viii) of this Section;
(iv) an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Agent,
dated on or prior to the date of such initial Borrowing, with respect to such
Borrower in substantially the form of Exhibit G hereto and covering such
additional matters relating to the transactions contemplated hereby as the
Required Banks may reasonably request; provided that such opinion need only
cover the Notes (if any) of the Company if such opinion has been previously
rendered in all other respects with respect to the Company pursuant to clause
(viii) of this Section;
(v) a certificate signed by the Chairman of the Board, the President or any
Vice President of such Borrower to the effect set forth in clauses (iii) and
(iv) of Section 3.02;
(vi) for the account of each Bank that has requested a Note in accordance
with Section 2.05, a duly executed Note of such Borrower, dated on or before the
date of such initial Borrowing, complying with the provisions of Section 2.05;
(vii) true copies of the designation and acceptance of appointment of the
agent appointed by such Borrower pursuant to Section 10.13(b) if such Borrower
is a Foreign Subsidiary Borrower; and
54
(viii) if the initial Borrowing hereunder is by a Subsidiary Borrower,
the documents, certificates and opinions referred to in clauses (i) through
(v), inclusive, of this Section with respect to the Company, all as if the
Company were the Borrower of such initial Borrowing, except that such
opinions of counsel shall not cover the Notes (if any) of the Company.
The certificate and opinions referred to in clauses (ii), (iii), (iv) and (v)
above shall be dated no more than three Euro-Currency Business Days before the
date of such initial Borrowing.
Section 3.02. Each Borrowing. The obligation of each Bank to make each Loan
to be made by it as part of a Borrowing hereunder to any Borrower is subject to
the further conditions precedent that:
(i) the Agent shall have received a Notice of Borrowing as required by
Section 2.02 or 2.03, as the case may be;
(ii) the fact that, immediately after such Borrowing, the Dollar Amount
of the aggregate outstanding principal amount of the Loans will not exceed
the aggregate amount of the Commitments;
(iii) the fact that, immediately after such Borrowing, no Default shall
have occurred and be continuing;
(iv) the fact that the representations and warranties of such Borrower
contained in this Agreement shall be true on and as of the date of such
Borrowing (after giving effect to such Borrowing) as if made on and as of
such date (except to the extent they expressly relate to an earlier date);
and
(v) the fact that, if such Borrower is a Subsidiary Borrower, the
representations and warranties of the Company contained in this Agreement
shall be true on and as of the date of such Borrowing (after giving effect to
such Borrowing) as if made on and as of such date (except to the extent they
expressly relate to an earlier date).
Each Borrowing hereunder by the Company shall be deemed to be a representation
and warranty by the Company on the date of such Borrowing as to the facts
specified in clauses (ii), (iii) and (iv) of this Section. Each Borrowing
hereunder by a Subsidiary Borrower shall be deemed to be a representation and
warranty on the date of such Borrowing (A) by such Subsidiary Borrower as to the
facts specified in clauses (ii), (iii) and (iv) of this Section and (B) by the
Company as to the facts specified in clauses (ii), (iii), (iv) and (v) of this
Section.
ARTICLE IV
55
Representations And Warranties
Section 4.01. Representations and Warranties of the Company. The Company
represents and warrants to the Banks as follows:
(a)(1) The Company is (i) a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and
(ii) either is qualified to do business and in good standing in each
jurisdiction where the ownership of its properties or the conduct of its
business requires such qualification or is subject to no material liability
or disability by reason of the failure to be so qualified in any such
jurisdiction.
(2) The Company has all corporate power and authority, governmental
permits, licenses, consents, authorizations, orders and approvals and other
authorizations as are necessary to carry on its business substantially as
presently conducted.
(3) The execution, delivery and performance of this Agreement and of the
Notes (if any) of the Company, and Borrowings hereunder by the Company, are
within its corporate power and authority and have been duly authorized by all
necessary corporate proceedings.
(4) Neither such authorization nor the execution, delivery and performance
by the Company of this Agreement or of the Notes (if any) of the Company
hereunder, nor any Borrowing hereunder by the Company when made, will
conflict with, result in a breach of or constitute a default under any of the
terms, conditions or provisions of any law or any regulation, order, writ,
injunction or decree of any court or governmental authority or of the
Certificate of Incorporation or By-Laws of the Company or result in the
violation or contravention of, or the acceleration of any obligation under,
or cause the creation of any Mortgage on any of the properties of the Company
pursuant to the provisions of, any indenture, agreement or other instrument
representing Debt, or any other agreement material to the Company and its
Consolidated Subsidiaries, considered as a whole, to which it is a party or
by which it is bound.
(5) Assuming its due execution by the Banks and the Agent, this Agreement
constitutes a legal, valid and binding agreement of the Company and the Notes
(if any) of the Company, when duly executed on behalf of the Company and
delivered in accordance with this Agreement, will constitute legal, valid and
binding obligations of the Company.
(b) The consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of December 31, 1993 and the related consolidated statements
of income and cash flows for the 12 months ended that date, certified by
Coopers &
56
▇▇▇▇▇▇▇, copies of all of which have been delivered to the Banks, fairly present
the consolidated financial position of the Company and its Consolidated
Subsidiaries as of such date and the consolidated results of their operations
and cash flows for such fiscal year, in conformity with generally accepted
accounting principles consistently applied.
(c) The unaudited consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of September 30, 1994 and the related unaudited
consolidated statements of income and cash flows for the nine-month period then
ended, a copy of which has been delivered to each of the Banks, fairly present,
in conformity with generally accepted accounting principles applied on a basis
consistent with (except as disclosed therein) the financial statements referred
to in paragraph (b) of this Section, the consolidated financial position of the
Company and its Consolidated Subsidiaries as of such date and their consolidated
results of operations and cash flows for such fiscal period (subject to normal
year-end adjustments).
(d) Except as disclosed in writing to the Banks, there has been no material
adverse change since September 30, 1994 in the business, operations, affairs,
assets, condition (financial or otherwise) or results of operations of the
Company and its Consolidated Subsidiaries, considered as a whole.
(e) Except as disclosed in writing to the Banks, there is no action, suit or
proceeding pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its Subsidiaries in any court or before or by
any arbitrator, governmental department, agency or instrumentality, which is
reasonably likely to materially and adversely affect the ability of the Company
to perform its obligations hereunder and under its Notes (if any) or which in
any manner draws into question the validity of this Agreement or any Note.
(f) No Default has occurred and is continuing.
(g) No consent, authorization, order or approval of (or filing or
registration with) any governmental commission, board or other regulatory
authority (other than routine reporting requirements) is required for the
execution, delivery and performance by the Company of this Agreement or of the
Notes (if any) of the Company or for Borrowings hereunder by the Company.
(h) Each member of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue Code with respect
to each Plan and is in compliance in all material respects with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code in respect of
any
57
Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could
result in the imposition of a Mortgage or the posting of a bond or other
security under ERISA or the Internal Revenue Code or (iii) incurred any
liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA.
(i) Each Material Subsidiary is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted except for such licenses, authorizations, consents or
approvals, the absence of which will not materially affect the business of
the Company and its Consolidated Subsidiaries taken as a whole.
(j) There are no Mortgages on any asset of the Company or any Subsidiary
on the date hereof which would have been prohibited if Section 5.02 of this
Agreement had been in effect on the date the Company or such Subsidiary, as
the case may be, acquired such asset.
(k) Except as disclosed in writing to the Banks, the description of
environmental matters affecting the Company and its Subsidiaries contained in
each of the Company's reports delivered to the Banks pursuant to clause (ii)
of Section 5.01(c) complied in all material respects as of the date of such
report with the requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as in effect
and applicable to the Borrower on the date of such report.
Section 4.02. Representations and Warranties of Each Subsidiary Borrower.
Each Subsidiary Borrower represents and warrants to the Banks as follows:
(a)(1) Such Subsidiary Borrower is (i) a corporation duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and (ii) either is qualified to do business and in good
standing in each jurisdiction where the ownership of its properties or the
conduct of its business requires such qualification or is subject to no
material liability or disability by reason of the failure to be so qualified
in any such jurisdiction.
(2) Such Subsidiary Borrower has all corporate power and authority,
governmental permits, licenses, consents, authorizations, orders and
approvals, and other authorizations as are necessary to carry on its business
substantially as presently conducted.
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(3) The execution, delivery and performance of this Agreement and of
the Notes (if any) of such Subsidiary Borrower, and Borrowings hereunder by
such Subsidiary Borrower, are within its corporate power and authority and
have been duly authorized by all necessary corporate proceedings.
(4) Neither such authorization nor the execution, delivery and
performance by such Subsidiary Borrower of this Agreement or of the Notes
(if any) of such Subsidiary Borrower hereunder, nor any Borrowing hereunder
by such Subsidiary Borrower when made, will conflict with, result in a
breach of or constitute a default under any of the terms, conditions or
provisions of any law or any regulation, order, writ, injunction or decree
of any court or governmental authority or of the Certificate of
Incorporation or By-Laws of such Subsidiary Borrower or result in the
violation or contravention of, or the acceleration of any obligation under,
or cause the creation of any Mortgage on any of the properties of such
Subsidiary Borrower pursuant to the provisions of, any indenture, agreement
or other instrument representing Debt or any other agreement material to
such Subsidiary Borrower and its consolidated subsidiaries, considered as a
whole, to which it is a party or by which it is bound.
(5) Assuming its due execution by the Banks and the Agent, this
Agreement constitutes a legal, valid and binding agreement of such
Subsidiary Borrower and the Notes (if any) of such Subsidiary Borrower,
when duly executed on behalf of such Subsidiary Borrower and delivered in
accordance with this Agreement, will constitute legal, valid and binding
obligations of such Subsidiary Borrower.
(b) Except as disclosed in writing to the Banks, there has been no
material adverse change since the last day of the fiscal quarter ending
immediately prior to the date on which such Subsidiary Borrower became a
party hereto in the business, operations, affairs, assets, condition
(financial or otherwise) or results of operations of such Subsidiary
Borrower and its consolidated subsidiaries, considered as a whole.
(c) Except as disclosed in writing to the Banks, there is no action,
suit or proceeding pending or, to the knowledge of such Subsidiary
Borrower, threatened against or affecting such Subsidiary Borrower or any
of its subsidiaries in any court or before or by any arbitrator,
governmental department, agency or instrumentality, which would be
reasonably likely to materially and adversely affect the ability of such
Subsidiary Borrower to perform its obligations hereunder and under its
Notes (if any) or which in any manner draws into question the validity of
this Agreement or such Notes of such Subsidiary Borrower.
(d) No Default has occurred and is continuing.
59
(e) No consent, authorization, order or approval of (or filing or
registration with) any governmental commission, board or other regulatory
authority (other than routine reporting requirements) is required for the
execution, delivery and performance by such Subsidiary Borrower of this
Agreement or of the Notes (if any) of such Subsidiary Borrower or for
Borrowings hereunder by such Subsidiary Borrower.
(f) Such Subsidiary Borrower is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
ARTICLE V
Covenants
The Company agrees that, so long as any Bank has any Commitment hereunder
or any amount payable with respect to any loan or under any Note remains unpaid:
Section 5.01. Certain Information to be Furnished by the Company. The
Company will deliver to each Bank:
(a) as soon as available and in any event within 120 days after the
end of each of its fiscal years, the consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such fiscal year
and the related consolidated statements of income and cash flows for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, prepared in accordance with generally accepted
accounting principles consistently applied and so certified by a nationally
recognized firm of independent certified public accountants;
(b) as soon as available and in any event within 60 days after the
end of each of the first three quarters of each of its fiscal years, the
consolidated balance sheet of the Company and its Consolidated Subsidiaries
as of the end of such fiscal quarter, the related consolidated statement of
income for such fiscal quarter and for the portion of the fiscal year ended
with such quarter and the related consolidated statement of cash flows for
the portion of the fiscal year ended with such quarter, setting forth in
each case in comparative form the figures for the corresponding quarter and
the corresponding portion of the Company's previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles and consistency by
the chief financial officer or the chief accounting officer of the Company;
(c) promptly after the same are available, copies of all (i)
financial statements, reports and proxy materials sent to shareholders of
the Company and (ii) reports on Forms 10-K, l0-Q and 8-K (or their
equivalents) filed by the Company with the
60
Securities and Exchange Commission (or any governmental agency succeeding
to the functions of such Commission);
(d) simultaneously with the delivery of the financial statements
referred to in clause (a) above, a certificate of the Company signed by the
Treasurer, any Assistant Treasurer or other financial officer of the
Company stating whether there exists on the date of such certificate any
Default, and, if any such Default then exists, specifying the nature and
period of existence thereof and the action the Company is taking and
proposes to take with respect thereto;
(e) forthwith, if at any time any executive officer of the Company
shall obtain knowledge of any Default, a certificate of the Treasurer, any
Assistant Treasurer or other financial officer specifying the nature and
period of existence thereof and the action the Company is taking and
proposes to take with respect thereto;
(f) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA
or notice that any Multiemployer Plan is in reorganization, is insolvent or
has been terminated, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate, impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding standard under Section 412 of
the Internal Revenue Code, a copy of such application; (v) gives notice of
intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such
notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could
result in the imposition of a Mortgage or the posting of a bond or other
security, a certificate of the chief financial officer or the chief
accounting officer of the Company setting forth details as to such
occurrence and action, if any, which the Company or applicable member of
the ERISA Group is required or proposes to take;
(g) promptly after any executive officer becomes aware thereof, a
notice concerning any actual change in the rating assigned to any of the
Borrower's Long-Term Public Debt from ▇▇▇▇▇'▇ or S&P (as such terms are
defined in Section 2.07(h)); and
61
(h) from time to time such further information regarding compliance
with this Agreement or the business, operations, affairs, assets, condition
(financial or otherwise) or results of operations of the Company and its
Consolidated Subsidiaries as the Agent, at the request of any Bank, may
reasonably request.
Section 5.02. Limitation on Mortgages. Nothing in this Agreement or in the
Notes (if any) shall in any way restrict or prevent the Company or any
Subsidiary from incurring any indebtedness; provided that the Company covenants
and agrees that neither it nor any Restricted Subsidiary will issue, assume or
guarantee any Debt secured by any Mortgage upon any Restricted Property without
effectively providing that all of the Loans of all of the Borrowers (together
with, if the Company so determines, any other indebtedness or obligation then
existing and any other indebtedness or obligation thereafter created ranking
equally with the Loans) shall be secured equally and ratably with (or
prior to) such Debt so long as such Debt shall be so secured, except that the
foregoing provisions shall not apply to:
(a) Mortgages affecting property of a corporation existing at the
time it becomes a Subsidiary of the Company or at the time it is merged
into or consolidated with the Company or a Subsidiary;
(b) Mortgages on property existing at the time of acquisition thereof
or incurred to secure payment of all or part of the purchase price thereof
or to secure Debt incurred prior to, at the time of or within 24 months
after acquisition thereof for the purpose of financing all or part of the
purchase price thereof;
(c) Mortgages on property to secure all or part of the cost of
exploration, drilling or development thereof or, in the case of property
which is, in the opinion of the Board of Directors of the Company,
substantially unimproved for the use intended by the Company, all or part
of the cost of improvement thereof, or to secure Debt incurred to provide
funds for any such purpose;
(d) Mortgages which secure only Debt owing by a Subsidiary to the
Company or another Subsidiary;
(e) Mortgages in favor of the United States of America or any state
thereof or any department, agency, instrumentality or political subdivision
of any such jurisdiction to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any indebtedness
incurred for the purpose of financing all or any part of the purchase price
or cost of constructing or improving the property subject thereto,
including, without limitation, Mortgages to secure Debt of the pollution
control or industrial revenue bond type; or
62
(f) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Mortgage referred to
in the foregoing clauses (a) to (e) inclusive or of any Debt secured
thereby; provided that the principal amount of Debt secured thereby shall
not exceed the principal amount of Debt so secured at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement Mortgage shall be limited to all or part of substantially the
same property which secured the Mortgage extended, renewed or replaced
(plus improvements on such property).
Notwithstanding the foregoing provisions of this Section, the Company and any
one or more Restricted Subsidiaries may issue, assume or guarantee Debt secured
by Mortgages which would otherwise be subject to the foregoing restrictions or
grant any such Mortgage to secure any such Debt in an aggregate principal amount
which, together with the aggregate outstanding principal amount of all Debt of
the Company and the Restricted Subsidiaries which would otherwise be subject to
the foregoing restrictions (not including Debt permitted to be secured under
clauses (a) to (f) inclusive above) and the aggregate Value of the Sale and
Lease-Back Transactions (as such terms are defined in Section 5.03 hereof) in
existence at such time (not including Sale and Lease-Back Transactions as to
which the Company has complied with Section 5.03(b) hereof), does not at any one
time exceed 10% of the Consolidated Net Tangible Assets of the Company and its
Consolidated Subsidiaries.
The following types of transaction, among others, shall not be deemed to
create Debt secured by Mortgage:
(i) the sale or other transfer of oil, gas or other minerals in place
for a period of time until, or in an amount such that, the transferee will
realize therefrom a specified amount (however determined) of money or such
minerals, or the sale or other transfer of any other interest in property
of the character commonly referred to as a production payment; and
(ii) Mortgages required by any contract or statute in order to permit
the Company or a Subsidiary to perform any contract or subcontract made by
it with or at the request of the United States of America, any state or any
department, agency or instrumentality, or political subdivision of either.
Section 5.03. Limitation on Sale and Lease-Back. The Company covenants and
agrees that neither it nor any Restricted Subsidiary will enter into any
arrangement with any Person (other than the Company or a Subsidiary), or to
which any such Person is a party, providing for the leasing to the Company or a
Restricted Subsidiary for a period of more than three years of any Restricted
Property which has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person or to any other Person (other than the
Company or a Subsidiary), to which funds have been or are to be
63
advanced by such Person on the security of the leased property (in this Section
and in Section 5.02 hereof called a "Sale and Lease-Back Transaction") unless
either:
(a) the Company or such Restricted Subsidiary would be entitled,
pursuant to the provisions of Section 5.02 hereof, to incur Debt in a
principal amount equal to or exceeding the Value of such Sale and Lease-
Back Transaction, secured by a Mortgage on the property to be leased,
without equally and ratably securing the Loans; or
(b) the Company (and in any such case the Company covenants and agrees
that it will do so) during or immediately after the expiration of four
months after the effective date of such Sale and Lease-Back Transaction
(whether made by the Company or a Restricted Subsidiary) applies to the
voluntary retirement of indebtedness of the Company maturing by the terms
thereof more than one year after the original creation thereof and ranking
at least pari passu with the Loans (hereinafter in this Section 5.03
called "Funded Debt") an amount equal to the Value of such Sale and Lease-
Back Transaction, less the principal amount of Funded Debt voluntarily
retired by the Company within such four-month period, excluding retirements
of Funded Debt as a result of conversions or pursuant to mandatory sinking
fund or repayment provisions or by payment at maturity.
For purposes of Section 5.02 hereof and this Section, the term "Value" shall
mean, with respect to a Sale and Lease-Back Transaction, as of any particular
time, the amount equal to the greater of (i) the net proceeds of the sale or
transfer of the property leased pursuant to such Sale and Lease-Back Transaction
or (ii) the fair value in the opinion of the Board of Directors of the Company
of such property at the time of entering into such Sale and Lease-Back
Transaction, in either case divided first by the number of full years of the
term of the lease and then multiplied by the number of full years of such term
remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
Section 5.04. Consolidation, Merger, Disposition of Assets. (a) Subject to
the provisions of Section 5.04(b) hereof, nothing contained in this Agreement
shall prevent any consolidation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any sale or conveyance
of all or substantially all the property of the Company, to any other
corporation (whether or not affiliated with the Company) authorized to acquire
and operate the same; provided, however, and the Company hereby covenants and
agrees, that upon any such consolidation, merger, sale or conveyance, other than
a consolidation or merger in which the Company is the continuing corporation,
the due and punctual payment of the principal of and interest on all of its
Loans, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Agreement to be
performed by the Company,
64
including the guarantee contained in Article IX hereof, shall be expressly
assumed by instrument satisfactory in form to the Required Banks and executed
and delivered to the Agent by the corporation (if other than the Company) formed
by such consolidation or into which the Company shall have been merged or by the
corporation which shall have acquired such property.
(b) If, upon any consolidation or merger of the Company with or into any
other corporation, or upon the sale or conveyance of all or substantially all
the property of the Company to any other corporation, any of the remaining
property of the Company or of any Restricted Subsidiary would thereupon become
subject to any Mortgage, the Company, prior to or simultaneously with such
consolidation, merger, sale or conveyance, will secure the Loans of the Company
and all other obligations of the Company under this Agreement, including the
guarantee contained in Article IX hereof, equally and ratably with any other
obligations of the Company or any subsidiary then entitled thereto, by a direct
Mortgage on all such property prior to all Mortgages other than any theretofore
existing thereon.
Section 5.05. Use of Proceeds. The proceeds of the Loans made under this
Agreement will be used by each Borrower for general corporate purposes. None of
such proceeds will be used in violation of Regulation U or of any similar law or
regulation.
ARTICLE VI
Defaults
Section 6.01. Defaults. If one or more of the following events (herein
called "Events of Default") shall occur and be continuing:
(a) any Borrower shall default in the payment when due of any
principal of any Loan or shall default in the payment within ten days of
the due date thereof of any interest on any Loan or any other amount
payable hereunder;
(b) the Company shall fail to perform or observe any covenant or
agreement to be performed by it contained in Sections 5.02, 5.03, 5.04 or
5.05;
(c) any Borrower shall fail to perform or observe any covenant or
agreement to be performed by it contained in this Agreement (other than
those covered by clause (a) or (b) above) for 30 days after written notice
of such failure is given to the Borrower by the Agent at the request of any
Bank;
(d) any Borrower shall have made or be deemed to have made pursuant to
this Agreement any representation or warranty in or pursuant to this
Agreement, or in any certificate or financial statement delivered pursuant
this Agreement or any
65
document delivered pursuant to Article III, which shall prove to have been
incorrect in any material respect when made or deemed made;
(e) the Company or any Subsidiary shall fail to pay any indebtedness
for borrowed money (other than the Loans) payable or guaranteed by it, or
any interest or premium thereon, when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) and such failure
shall continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such indebtedness or guarantee;
provided that (i) the aggregate amount of such indebtedness of or
guaranteed by the Borrowers, including any interest or premium thereon,
shall exceed $75,000,000 (or the Equivalent Amount thereof) and (ii) there
shall be excluded for purposes of the foregoing any such indebtedness or
guarantee (A) in favor of any department, agency, instrumentality or
political subdivision of the United States of America or any state thereof
in respect of any pollution control, industrial revenue bond or other
similar type of financing or (B) incurred to finance, or otherwise relating
primarily to, any assets, projects or operations located or conducted
primarily outside the United States of America; provided, further, that the
obligation of the Company or any Subsidiary to pay such indebtedness or
guarantee referred to in clause (A) or (B) above is being contested in good
faith;
(f) the Company, any Subsidiary Borrower, any Material Subsidiary or
any two or more Subsidiaries which, if such Subsidiaries were one
Subsidiary, would be a Material Subsidiary shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of
a trustee, receiver, liquidator, custodian or other similar official of it
or any substantial part of its property, or shall consent to any such
relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing;
(g) an involuntary case or other proceeding shall be commenced against
the Company, any Subsidiary Borrower, any Material Subsidiary or any two or
more Subsidiaries which, if such Subsidiaries were one Subsidiary, would be
a Material Subsidiary seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60 days;
or an order for relief shall be entered against the Company or any
Subsidiary under the federal bankruptcy laws as now or hereafter in effect;
66
(h) any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $50,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the
ERISA Group, any plan administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of ERISA to terminate,
to impose liability (other than for premiums under Section 4007 of ERISA)
in respect of, or to cause a trustee to be appointed to administer any
Material Plan; or a condition shall exist by reason of which the PBGC would
be entitled to obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal from, or
a default, within the meaning of Section 4219(c)(5) of ERISA, with respect
to, one or more Multiemployer Plans which could cause one or more members
of the ERISA Group to incur a current payment obligation in excess of
$50,000,000; or
(i) a final, non-appealable judgment or order enforceable by the
courts of the United States or the United Kingdom for the payment of money
in excess of $50,000,000 (or the Equivalent Amount thereof) shall be
rendered against the Company or any Subsidiary and such judgment or order
shall continue unsatisfied for a period of 30 days;
then, and in every such event, the Agent shall (i) if requested by the Required
Banks, by notice to the Company terminate the Commitments, and they shall
thereupon terminate, and (ii) if requested by Banks having Loans the Dollar
Amount of the principal amount of which is more than 51% of the Dollar Amount
of the aggregate principal amount of all the Loans, by notice to the Company
and each Subsidiary Borrower declare the full unpaid principal of and accrued
interest on the Loans and all other amounts payable hereunder to be immediately
due and payable, whereupon the Commitments shall terminate and the Loans and
such other amounts shall be immediately due and payable, without further
notice, presentment, demand, protest or other formality of any kind, all of
which are hereby expressly waived by the Company and each Subsidiary Borrower;
provided that in the case of the occurrence of an event referred to in clause
(f) or (g) above, the Commitments shall automatically terminate and the full
unpaid principal of and accrued interest on the Loans and all other amounts
payable hereunder shall automatically become immediately due and payable,
without notice, presentment, demand, protest or other formality of any kind, all
of which are hereby expressly waived by the Company and each Subsidiary
Borrower.
Section 6.02. Notice of Default. The Agent shall give notice to the Company
and each Subsidiary Borrower under Section 6.01(c) promptly upon being requested
to do so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
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The Agent
Section 7.01. Appointment and Authorization. Each Bank irrevocably appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the Notes as are delegated to the
Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
Section 7.02. Agent and Affiliates. ▇▇▇▇▇▇ Guaranty Trust Company of New
York shall have the same rights and powers under this Agreement as any other
Bank and may exercise or refrain from exercising the same as though it were not
the Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Company or any Subsidiary or any affiliate thereof as if it
were not the Agent hereunder.
Section 7.03. Action by Agent. The obligations of the Agent hereunder are
only those expressly set forth herein. Without limiting the generality of the
foregoing, the Agent shall not be required to take any action with respect to
any Default, except as expressly provided in Article VI.
Section 7.04. Consultation with Experts. The Agent may consult with legal
counsel (who may be counsel for any Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
Section 7.05. Liability of Agent. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
not taken by it in connection herewith (i) with the consent or at the request of
the Required Banks or (ii) in the absence of its own gross negligence or willful
misconduct. Neither the Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any Borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of any Borrower; (iii) the satisfaction of
any condition specified in Article III, except receipt of items required to be
delivered to the Agent; or (iv) the validity, effectiveness or genuineness of
this Agreement, the Notes or any other instrument or writing furnished in
connection herewith. The Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement, or other writing
(which may be a bank wire, telex or similar writing) believed by it to be
genuine or to be signed by the proper party or parties.
Section 7.06. Indemnification. Each Bank shall, ratably in accordance with
its Commitment, indemnify the Agent (to the extent not reimbursed by the
Company) against any cost, expense (including counsel fees and disbursements),
claim, demand,
68
action, loss or liability (except such as result from the Agent's gross
negligence or willful misconduct) that the Agent may suffer or incur in
connection with this Agreement or any action taken or omitted by the Agent
hereunder.
Section 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
Section 7.08. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Banks and the Company. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent's giving
of notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a commercial bank organized under the
laws of the United States of America or of any state thereof and having a
combined capital and surplus of at least $200,000,000. Upon the acceptance of
its appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent.
ARTICLE VIII
Change In Circumstances
Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair. (a)
If on or prior to the first day of any Interest Period for any Fixed Rate
Borrowing (other than a Money Market Absolute Rate Loan):
(1) the Agent is advised by the Reference Banks that deposits in the
applicable currency (in the applicable amounts) are not being offered to
the Reference Banks in the relevant market for such Interest Period, or
(2) the Required Banks advise the Agent that the Adjusted CD Rate or
the London Interbank Offered Rate, as the case may be, as determined by the
Agent will not adequately and fairly reflect the cost to such Banks of
funding their CD Loans or Euro-Currency Loans or Money Market LIBOR Loans,
as the case may be, for such Interest Period,
69
the Agent shall forthwith give notice thereof to the Company and the Banks,
whereupon until the Agent notifies the Company that the circumstances giving
rise to such notice no longer exist: (A)(i) if such circumstances relate to CD
Loans, the obligations of the Banks to make, or to continue or convert
outstanding Loans as or into, CD Loans shall be suspended or (ii) if such
circumstances relate to the London Interbank Offered Rate, the New York
Interbank Offered Rate shall replace the London Interbank Offered Rate for
purposes of interest rate determinations hereunder for Euro-Currency Borrowings
and Money Market LIBOR Borrowings for such Interest Period (and all references
herein to the London interbank market and the London Interbank Offered Rate for
such purposes shall, unless the context otherwise requires, be deemed to be
references to the New York interbank market and the New York Interbank Offered
Rate, respectively), as the case may be, and (B) unless the Company notifies the
Agent at least one Domestic Business Day before the date of the making or
conversion or continuation of any Group of Fixed Rate Loans for which a Notice
of Borrowing or Notice of Interest Rate Election has previously been given that
it elects not to borrow, continue or convert (as the case may be) on such date
or that it elects to do so in another currency such that clause (1) or (2) above
is not applicable thereto,
(i) if such Group of Fixed Rate Loans consists of CD Loans, such CD
Loans shall instead be made, converted into or continued (as the case may
be) (x) as a Group of Euro-Currency Loans if the relevant Borrower so
elects by notice to the Agent and all of the procedures set forth herein
for making, converting into or continuing Euro-Currency Loans, as the case
may be (including the required notice to the Banks but excluding the three
Euro-Currency Business Days' notice required by Section 2.02 or 2.06), can
be complied with at such time or (y) as a Money Market LIBOR Borrowing if
the relevant Borrower so elects by notice to the Agent and all of the
procedures set forth herein for a Money Market LIBOR Borrowing (including
the required notice to the Banks) can be complied with at such time or (z)
if neither of the foregoing types of Loans or Borrowings is elected or is
possible, as Base Rate Loans,
(ii) if such Group of Fixed Rate Loans consists of Euro-Currency
Loans, the interest rate for such Group shall be determined on the basis of
the New York Interbank Offered Rate if all of the procedures set forth
herein for making, converting into or continuing Euro-Currency Loans (as
the case may be) on such basis (including the required notice to the Banks)
can be complied with at such time or, if clause (1) or (2) of this
subsection is applicable to the New York Interbank Offered Rate at such
time, such Group of Euro-Currency Loans shall instead be made, converted
into or continued (as the case may be) (x) as a Group of CD Loans if the
relevant Borrower so elects by notice to the Agent and all of the
procedures set forth herein for making, converting into or continuing CD
Loans, as the case may be (including the required notice to the Banks but
excluding the three Domestic Business Days' notice required by Section 2.02
or 2.06), can be complied with at such time or (y) if making, converting
into or continuing such Loans as CD Loans
70
is not elected or is not possible, then such Euro-Currency Loans shall
instead be made or converted into as a Group of Base Rate Loans; provided
that, if such Euro-Currency Loans were to be denominated in a currency
other than Dollars, the principal amount of the CD Loans or Base Rate
Loans, as the case may be, shall be the Dollar Amount of the principal
amount of such Euro-Currency Loans, and
(iii) if such Fixed Rate Borrowing is a Money Market LIBOR Borrowing,
the interest rate for such Money Market LIBOR Borrowing shall be
determined on the basis of the New York Interbank Offered Rate if all of
the procedures set forth herein for a Money Market LIBOR Borrowing on such
basis (including the required notice to the Banks) can be complied with at
such time or, if clause (1) or (2) of this subsection is applicable to the
New York Interbank Offered Rate at such time, the Money Market LIBOR Loans
comprising such Borrowing shall be made in Dollars in a principal amount
equal to the Dollar Amount of the principal amount of such Money Market
LIBOR Borrowing and shall bear interest for each day from and including
the first day to but excluding the last day of the Interest Period
applicable thereto at the Base Rate for such day.
(b) If clause (1) or (2) of subsection (a) of this Section becomes
applicable when the New York Interbank Offered Rate has replaced the London
Interbank Offered Rate hereunder, then the Agent shall give notice to the
Company of such condition and the Company and the Agent (in consultation with
the Banks) shall promptly enter into negotiations in good faith with a view to
agreeing upon an alternative basis (a "Substitute Basis") acceptable to the
Company and the Banks and applicable to all Borrowers for determining the
interest rate which shall be applicable to the affected Euro-Currency Loans or
Money Market LIBOR Borrower, which rate shall reflect the cost to the Banks of
maintaining such Euro-Currency Loans plus the Euro-Currency Margin or
maintaining such Money Market LIBOR Loans plus any applicable Money Market
Margin as the case may be. If, prior to the expiration of 20 days from the date
of such notice by the Agent, the Company and the Banks shall agree upon a
Substitute Basis, interest on such Euro-Currency Loans or Money Market LIBOR
Loans for the affected Interest Periods commencing during the period beginning
two Euro-Currency Business Days after the date of such notice and ending on the
date three Euro-Currency Business Days after the Agent notifies the Company and
the Banks that the condition specified in clause (1) or (2) of subsection (a) of
this Section has ceased to be in effect shall be determined on such Substitute
Basis. Each Subsidiary Borrower, by executing and delivering this Agreement,
constitutes and appoints the Company its authorized agent for purposes of
determining the Substitute Basis applicable to Loans of such Subsidiary Borrower
and agrees to be bound by any agreement hereunder by the Company to any such
Substitute Basis. If no such agreement has been reached by the expiration of
such 20-day period, the Agent shall so notify the Banks and each Bank shall,
within ten days after the date of such notice, notify the Company (through the
Agent) of the rate (or the basis of determining the rate) at which it is
prepared to maintain such Euro-Currency Loans or Money Market LIBOR Loans held
by it hereunder for the affected Interest Periods (which rate shall reflect the
71
cost to such Bank of maintaining such Loans plus the Euro-Currency Margin or
plus any applicable positive Money Market Margin, as the case may be) and such
rate (or basis) shall be applicable to such Euro-Currency Loans or Money Market
LIBOR Loans, as the case may be, held by it for the affected Interest Periods
applicable thereto referred to in the preceding sentence. The Agent shall
determine the total amount of interest payable by each affected Borrower on each
date for the payment of interest hereunder determined in accordance with this
subsection (b) (to the extent it has received the necessary information from the
Banks) and notify such Borrower of such total amount (provided that no Bank's
right to receive any interest payable to it hereunder shall be impaired by its
failure to provide such information to the Agent). The Company shall have the
right at any time to suspend the obligation of each Bank notifying a rate (or
basis) pursuant to the second preceding sentence of this subsection to make
Euro-Currency Loans.
Section 8.02. Illegality. If, after November 30, 1994 the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for any Bank (or its Applicable Lending Office) to make, maintain or
fund its Euro-Currency Loans and such Bank shall so notify the Agent, the Agent
shall forthwith give notice thereof to the other Banks, the Company and each
Subsidiary Borrower, whereupon until such Bank notifies the Company, each
Subsidiary Borrower and the Agent that the circumstances giving rise to such
suspension no longer exist, the obligation of such Bank to make, convert into or
continue Euro-Currency Loans shall be suspended. Before giving any notice to the
Agent pursuant to this Section, such Bank shall designate a different Applicable
Lending Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank. If such notice is given, each affected Euro-Currency Loan of such Bank
then outstanding shall be converted to a Base Rate Loan (or, if any such
Borrower so elects by at least one Domestic Business Day's notice to the Agent
and such Bank, a CD Loan or, subject to Section 2.03 and the willingness of such
Bank in its own discretion to submit a Money Market Quote, a Money Market
Absolute Rate Loan) either (a) on the last day of the then current Interest
Period applicable to such Euro-Currency Loan if such Bank may lawfully continue
to maintain and fund such Loan to such day or (b) immediately if such Bank shall
determine that it may not lawfully continue to maintain and fund such Loan to
such day, in any case with an Interest Period coincident with the remaining term
of the Interest Period applicable to such affected Euro-Currency Loan of such
Borrower, and such Bank shall make such a Domestic Loan.
Section 8.03. Increased Cost and Reduced Return. (a) If on or after (x)
November 30, 1994, in the case of any Syndicated Loan or any obligation to make
Syndicated Loans or (y) the date of the related Money Market Quote, in the case
of any Money
72
Market Loan, the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Applicable Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) shall subject any Bank (or its Applicable Lending Office) to any
tax, duty or other similar charge with respect to its Fixed Rate Loans, its
Notes or its obligation to make, convert into or continue Fixed Rate Loans,
or shall change the basis of taxation of payments to any Bank (or its
Applicable Lending Office) of the principal of or interest on its Fixed
Rate Loans or any other amounts due under this Agreement in respect of its
Fixed Rate Loans or its obligation to make, convert into or continue Fixed
Rate Loans (except for changes in the rate of tax on the overall net income
of such Bank or its Applicable Lending Office imposed by the jurisdiction
in which such Bank's principal executive office or Applicable Lending
Office is located, and except as provided in clause (d) below) or
(ii) shall impose, modify or deem applicable any reserve, special
deposit, deposit insurance assessment or similar requirement (including,
without limitation, any such requirement imposed by the Board of Governors
of the Federal Reserve System, but excluding (A) with respect to any CD
Loan any such requirement included in an applicable Domestic Reserve
Percentage and (B) with respect to any Euro-Currency Loan or Money Market
LIBOR Loan any such requirement included in an applicable Euro-Currency
Reserve Percentage) against assets of, deposits with or for the account of,
or credit extended by, any Bank (or its Applicable Lending Office) or
shall impose on any Bank (or its Applicable Lending Office) or on the
United States market for certificates of deposit or the London interbank
market any other condition affecting its Fixed Rate Loans, its Notes or its
obligation to make, convert into or continue Fixed Rate Loans,
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making, converting into or maintaining any
Fixed Rate Loan, or to reduce the amount of any sum received or receivable by
such Bank (or its Applicable Lending Office) under this Agreement or under its
Notes with respect thereto, by an amount deemed by such Bank to be material,
then, within 15 days after demand by such Bank (with a copy to the Agent), the
Borrower of each affected Fixed Rate Loan or owing the affected sum shall pay to
such Bank (without duplication of amounts otherwise payable hereunder) such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction with respect to such affected Fixed Rate Loan or such affected
sum.
(b) If any Bank shall have reasonably determined that, after November 30,
1994, the adoption of any applicable law, rule or regulation regarding capital
adequacy or any
73
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or the making of any request or the
issuance of any directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or
has had the effect of reducing the rate of return on the capital of such Bank
(or its Parent) as a consequence of its obligations hereunder to a level below
that which such Bank (or its Parent) could have achieved but for such adoption,
change or compliance (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, within 15 days after demand by such Bank (with a copy to the
Agent), the relevant Borrower or (if such Bank is unable to reasonably allocate
such effect among the Borrowers) the Company shall pay to such Bank (without
duplication of amounts otherwise payable hereunder) such additional amount or
amounts as will compensate such Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Company and the Agent of any event
of which it has knowledge, occurring after November 30, 1994, which will entitle
such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section, setting forth the additional amount or
amounts to be paid to it hereunder and setting forth in reasonable detail the
basis for such compensation shall be conclusive in the absence of manifest
error. In determining such amount, such Bank may use any reasonable averaging
and attribution methods.
(d) This Section 8.03 shall not apply to (i) any liabilities with respect
to Foreign Taxes, Other Taxes or liabilities that would be Foreign Taxes or
Other Taxes in the absence of the exclusionary language in the first sentence of
Section 2.16(c), all of which shall be governed by Section 2.16, or (ii) any
liabilities with respect to taxes, duties or similar charges that would be
described in clauses (i) through (v) of the first sentence of Section 2.16(c) if
Section 2.16(c) applied to the Company and to Subsidiary Borrowers other than
Foreign Subsidiary Borrowers.
Section 8.04. Substitute Loans. If (i) the obligation of any Bank to make,
convert into or continue Euro-Currency Loans has been suspended pursuant to
Section 8.01(b) or 8.02 or (ii) any Bank has demanded compensation under Section
8.03(a) and the Borrower shall, by at least five Euro-Currency Business Days'
prior notice to such Bank through the Agent, have elected that the provisions of
this Section shall apply to such Bank, then, unless and until such Bank notifies
the Company that the circumstances giving rise to such suspension or demand for
compensation no longer apply:
(a) all Loans denominated in Dollars which would otherwise be made,
converted into or continued by such Bank as CD Loans or Euro-Currency
Loans,
74
as the case may be, shall be made instead as Base Rate Loans or, if any
Borrower shall so elect in its Notice of Borrowing or Notice of Interest Rate
Election, CD Loans or Euro-Currency Loans (whichever type is not affected by
such circumstances) for an Interest Period coincident with the related Group
of Fixed Rate Loans,
(b) all Loans denominated in a currency other than Dollars which would
otherwise be made, converted into or continued by such Bank as Euro-Currency
Loans shall be made instead as Base Rate Loans or, if any Borrower shall so
elect in its Notice of Borrowing or Notice of Interest Rate Election, CD
Loans, in each case for an Interest Period coincident with the related Group
of Euro-Currency Loans and in Dollars in a principal amount equal to the
Dollar Amount of the principal amount of such Euro-Currency Loans, and
(c) after each of its CD Loans or Euro-Currency Loans, as the case may be,
has been repaid or converted, all payments of principal which would otherwise
be applied to repay such Fixed Rate Loans shall instead be applied to repay
its Loans made pursuant to Section 8.02 or clauses (a) or (b) above.
Section 8.05. Regulation D Compensation. For so long as any Bank maintains
reserves against "Eurocurrency liabilities" (or any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Currency Loans is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of such Bank to
United States residents), and as a result the cost to such Bank (or its Euro-
Currency Lending Office) of making or maintaining its Euro-Currency Loans is
increased, then such Bank may require the Borrower to pay, contemporaneously
with each payment of interest on the Euro-Currency Loans, additional interest on
the related Euro-Currency Loan of such Bank at a rate per annum up to but not
exceeding the excess of (i) (A) the applicable London Interbank Offered Rate
divided by (B) one minus the Euro-Currency Reserve Percentage over (ii) the
applicable London Interbank Offered Rate. Any Bank wishing to require payment of
such additional interest (x) shall so notify the Borrower and the Agent, in
which case such additional interest on the Euro-Currency Loans of such Bank
shall be payable to such Bank at the place indicated in such notice with respect
to each Interest Period commencing at least four Euro-Currency Business Days
after the giving of such notice and (y) shall furnish to the Borrower at least
five Euro-Currency Business Days prior to each date on which interest is payable
on the Euro-Currency Loans an officer's certificate setting forth the amount to
which such Bank is then entitled under this Section (which shall be consistent
with such Bank's good faith estimate of the level at which the related reserves
are maintained by it). Each such certificate shall be accompanied by such
information as the Borrower may reasonably request as to the computation set
forth therein.
Section 8.06. Substitution of Bank. If (i) the obligation of any Bank to
make Euro-Currency Loans has been suspended pursuant to Section 8.01(b) or 8.02
or (ii) any
75
Bank has demanded compensation under Section 8.03 or 8.05, the Company shall
have the right, with the assistance of the Agent, to seek a satisfactory
substitute bank or banks (which may be one or more of the Banks) to purchase the
Loans and Notes (if any) of such Bank for cash in the currency in which the
principal thereof is denominated without recourse to such Bank and assume the
Commitment of such Bank.
ARTICLE IX
The Guarantee
Section 9.01. The Guarantee. The Company hereby unconditionally guarantees
that the principal of and interest on each Loan of each Subsidiary Borrower and
all other amounts payable by each such Subsidiary Borrower hereunder and under
each such Subsidiary Borrower's Loans shall be promptly paid in full when due
(whether at stated maturity, by acceleration or otherwise) in accordance with
the terms hereof and thereof and the Company hereby unconditionally agrees that
upon default in the full payment when due (whether at stated maturity, by
acceleration or otherwise) of any of such principal, interest or other amounts,
the Company shall forthwith pay the same at the place, in the currency and in
the manner specified in this Agreement.
Section 9.02. Guarantee Unconditional. The obligations of the Company
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of a Subsidiary Borrower under this
Agreement or any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this Agreement
or any Note;
(iii) any release, non-perfection or invalidity of any direct or
indirect security for any obligation of a Subsidiary Borrower under this
Agreement or any Note;
(iv) any change in the corporate existence, structure or ownership of
a Subsidiary Borrower, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting a Subsidiary Borrower or its assets or
any resulting release or discharge of any obligation of a Subsidiary
Borrower contained in this Agreement or any Note;
(v) the existence of any claim, setoff or other rights which the
Company may have at any time against a Subsidiary Borrower, the Agent, any
Bank or any other Person, whether in connection herewith or with any
unrelated transactions, provided
76
that nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against a
Subsidiary Borrower for any reason of this Agreement or any Note, or any
provision of applicable law or regulation purporting to prohibit the payment
by a Subsidiary Borrower of the principal of or interest on any Loan or any
other amount payable by a Subsidiary Borrower under this Agreement; or
(vii) any other act or omission to act or delay of any kind by a
Subsidiary Borrower, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
Section, constitute a legal or equitable discharge of the Company's
obligations hereunder.
The Company's obligations hereunder shall remain in full force and effect until
the principal of and interest on all of the Loans of all the Subsidiary
Borrowers and all other amounts payable by the Subsidiary Borrowers under this
Agreement shall have been paid in full and the Commitments shall have
terminated.
Section 9.03. Waiver by the Company. The Company hereby irrevocably and
expressly waives acceptance hereof, diligence, presentment and protest and any
requirement that at any time any right or power be exhausted or any action be
taken by any Person against any Subsidiary Borrower or other Person and all
notices and demands whatsoever.
Section 9.04. Subrogation; Stay of Acceleration. Upon making any payment
with respect to any Subsidiary Borrower hereunder, the Company shall be
subrogated to the rights of the payee against such Subsidiary Borrower with
respect to such payment; provided that the Company shall not enforce any payment
by way of subrogation until all amounts of principal of and interest on the
Loans and all other amounts payable by the Subsidiary Borrowers under this
Agreement have been paid in full. The Company agrees that, as between the
Company, on the one hand, and the Banks and the Agent, on the other, the
obligations of each Subsidiary Borrower guaranteed under this Article may be
declared to be forthwith due and payable as provided in Article VI hereof for
purposes of this Article notwithstanding any stay, injunction or other
prohibition preventing such declaration as against such Subsidiary Borrower and
that, in the event of such declaration, such obligations (whether or not due and
payable by such Subsidiary Borrower) shall forthwith become due and payable by
the Company for purposes of this Article.
Section 9.05. Reinstatement in Certain Circumstances. If at any time any
payment of the principal of or interest on any Loan of any Subsidiary Borrower
or any other amount payable by a Subsidiary Borrower under this Agreement is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of such
77
Subsidiary Borrower or otherwise, the Company's obligations hereunder with
respect to such payment shall be reinstated as though such payment had been due
but not made at such time.
ARTICLE X
Miscellaneous
Section 10.01. Notices. All notices and other communications to any party
provided for herein shall be in writing (including bank wire, telex, facsimile
transmission, telegraph, cable or similar writing) and shall be given to such
party: (x) in the case of any Borrower or the Agent, at its address, facsimile
or telex number set forth on the signature pages hereof, (y) in the case of any
Bank, at its address, facsimile or telex number set forth in its Administrative
Questionnaire or (z) in the case of any party, at such other address as shall be
designated by such party in a notice to the Company, each Subsidiary Borrower
and the Agent. All notices and other communications shall be effective (i) if
given by telex or facsimile transmission, when such telex is transmitted to the
telex or facsimile number specified in this Section and the appropriate
answerback or telephonic confirmation (in the case of any facsimile
transmission) is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the Agent under
Article II or VIII hereof shall not be effective until received.
Section 10.02. No Waiver. No failure on the part of the Agent or any Bank to
exercise and no delay in exercising, and no course of dealing with respect to,
any right, power or privilege under this Agreement or any Note shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement or any Note preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
Section 10.03. Governing Law. This Agreement, the Notes and the requests,
invitations and offers provided for herein shall be governed by, and construed
in accordance with, the laws of the State of New York.
Section 10.04. Expenses. The Company agrees to pay or reimburse (i) the
Agent for paying the reasonable fees and expenses of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
special counsel to the Agent, in connection with (a) the preparation, execution
and delivery of this Agreement and the Notes (if any) and the making of the
Borrowings hereunder and (b) any amendment, modification, consent or waiver of
any of the terms of this Agreement or any of the Notes and (ii) the Agent or any
Bank for paying all reasonable costs and expenses of the Banks and the Agent
(including reasonable counsel fees) in connection with the enforcement of this
Agreement or any Note and any collection, bankruptcy,
78
insolvency and other enforcement proceedings resulting therefrom. The Company
hereby agrees to indemnify the Agent and each Bank, their respective affiliates
and the respective directors, officers, agents and employees of the foregoing
(each an "Indemnitee") and hold each Indemnitee harmless from and against any
and all liabilities, losses, damages, costs and expenses of any kind, including,
without limitation, the reasonable fees and disbursements of counsel, which may
be incurred by such Indemnitee in connection with any investigative,
administrative or judicial proceeding (whether or not such Indemnitee shall be
designated a party thereto) brought or threatened relating to or arising out of
this Agreement or any actual or proposed use of proceeds of Loans hereunder;
provided that no Indemnitee shall have the right to be indemnified hereunder for
such Indemnitee's own gross negligence or willful misconduct as determined by a
court of competent jurisdiction. If and to the extent that the foregoing
indemnification is unenforceable for any reason, the Company agrees to make the
maximum contribution to the payment and satisfaction of each of such losses,
liabilities, claims, damages or expenses which is permissible under applicable
law.
Section 10.05. Amendments, Etc. Any provision of this Agreement or the Notes
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed by the Company and the Required Banks (and, if the rights or
duties of the Agent are affected thereby, by the Agent); provided that the Agent
may, with the consent of the Company (which shall not be unreasonably withheld),
specify by notice to the Banks modifications in the procedures set forth in
Section 2.03; and provided further that no such amendment, waiver or
modification shall, unless signed by all the Banks, (i) increase the Commitment
of any Bank or subject any Bank to any additional obligation (except for
increases to the Commitment of any Bank pursuant to Section 8.06 to which such
Bank has agreed in writing), (ii) reduces the principal of or rate of interest
on any Loan or any fees hereunder or the currency of payment thereof, (iii)
postpone the date fixed for any payment of principal of or interest on any Loan
or any fees hereunder, (iv) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Banks, which
shall be required for the Banks or any of them to take any action under this
Section or any other provision of this Agreement or (v) change Article IX or
Section 10.11 hereof.
Section 10.06. Counterparts; Effectiveness. This Agreement may be executed
in any number of counterparts, all of which taken together shall constitute one
and the same instrument, and any of the parties hereto may execute this
Agreement by signing any such counterpart. This Agreement shall become effective
when the Agent shall have received (i) counterparts hereof signed by the
Company, each Bank listed on the signature pages hereof and the Agent and (ii)
evidence satisfactory to it that the commitments under the Existing Credit
Agreement have terminated, all loans thereunder have been repaid in full and all
accrued fees and other amounts payable thereunder (including, without
limitation, any funding costs payable pursuant to the Existing Credit Agreement)
have been paid in full. The Agent shall notify the Company and the Banks of the
effectiveness of this Agreement by delivery of a notice in the form of
Exhibit I
79
hereto. The parties hereto who are also parties to the Existing Credit Agreement
hereby agree that the "Commitments" of the Banks thereunder shall terminate
automatically upon the effectiveness of this Agreement, and waive the notices
requirement under Section 2.09 of the Existing Credit Agreement.
Section 10.07. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that no Borrower may assign or
otherwise transfer any of its rights under this Agreement (other than pursuant
to a transaction expressly permitted by Section 5.04) without the prior written
consent of all Banks and the Agent.
(b) Any Bank may at any time grant to one or more banks or other institutions
(each a "Participant") participating interests in its Commitment or any or all
of its Loans. In the event of any such grant by a Bank of a participating
interest to a Participant, whether or not upon notices to the Borrowers and the
Agent, such Bank shall remain responsible for the performances of its
obligations hereunder, and the Borrowers and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. Any agreement pursuant to which any Bank may
grant such a participating interest shall provide that such Bank shall retain
the sole right and responsibility to enforce the obligations of the Borrowers
hereunder including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
participation agreement may provide that such Bank will not agree to any
modification, amendment or waiver of this Agreement described in clause (ii),
(iii) or (v) of Section 10.05 without the consent of the Participant. The
Borrowers agree that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Sections 2.13, 2.15,
2.16, 10.04 and Article VIII with respect to its participating interest, with
such benefits to be determined as if the related Bank had not granted such
participation. An assignment or other transfer which is not permitted by
subsection (c) or (d) below shall be given effect for purposes of this Agreement
only to the extent of a participating interest granted in accordances with this
subsection (b).
(c) With (and subject to) the subscribed consent of the Company and the
Agent, any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and the Notes, and such Assignee
shall assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit H hereto executed by
such Assignee and such transferor Bank; provided that if an Assignee is an
affiliate of such transferor Bank or a Bank prior to giving effect to such
assignment, no such consent shall be required (but prompt notices thereof shall
be given to the Agent). Upon execution and delivery of such instrument and
payment by such Assignee to such transferor Bank of an amount equal to the
purchase prices agreed between such transferor Bank and such Assignee, such
Assignee shall be a Bank party to this Agreement and shall have all the rights
and obligations of a Bank with a
80
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding extent,
and no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection (c), the transferor
Bank, the Agent and the Borrowers shall make appropriate arrangements so that,
if required, new Notes are issued to the Assignee. In connection with any such
assignment, the transferor Bank shall pay to the Agent an administrative fee for
processing such assignment in the amount of $2,500.
(d) Any Bank may at any time assign all or any portion of its rights under
this Agreement and its Notes (if any) to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights shall
be entitled to receive any greater payment under Section 2.16, 8.03 or 8.05
than such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Company's prior written
consent or by reason of the provisions of Section 8.02 or 8.03 requiring such
Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(f) If any Reference Bank assigns its Loans to an unaffiliated institution,
the Agent shall, in consultation with the Company and with the consent of the
Required Banks, appoint another bank to act as a Reference Bank hereunder.
Section 10.08. Survival. The obligations of the Company and each Subsidiary
Borrower under Article VIII and Sections 2.16, 9.05 and 10.04 shall survive the
repayment of the Loans and the termination of the Commitments.
Section 10.09. Acknowledgment. Each Borrower acknowledges that the Banks
have entered into this Agreement in reliance on each Borrower's assurance that
such Borrower does not intend to use the proceeds of any Borrowings hereunder in
a manner which would violate any applicable law or governmental rule or
regulation.
Section 10.10. Headings. The Table of Contents and Article and Section
headings used herein shall not affect the interpretation of any provision of
this Agreement.
Section 10.11. Sharing of Setoffs. Each Bank agrees that, if it shall, by
exercising any right of setoff or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount of principal and interest due with respect
to any of its Loans which is greater than the proportion received by any other
Bank in respect of the aggregate amount of principal and interest due with
respect to any Loan made by such other Bank (other than disproportionate
payments to any Bank provided for by this Agreement), the Bank receiving such
proportionately greater payment shall purchase such participations
81
in the Loans made by the other Banks, and such other adjustments shall be made,
as may be required so that all such payments of principal and interest with
respect to the Loans made by the Banks shall be shared by the Banks pro rata;
provided that nothing in this Section shall impair the right of any Bank to
exercise any right of setoff or counterclaim it may have and to apply the amount
recovered thereby to the payment of indebtedness of the relevant Borrower other
than its indebtedness under the Loans. If under any applicable bankruptcy,
insolvency or other similar law, any Bank receives a secured claim in lieu of a
setoff to which this Section applies, such Bank shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Banks entitled under this Section to share in
the benefits of any recovery on such secured claim. Each Borrower agrees, to the
fullest extent it may effectively do so under applicable law, that any Bank
which is a holder of a participation in a Loan of such Borrower, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of setoff
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of such Borrower in the
amount of such participation.
Section 10.12. Collateral. Each of the Banks represents to the Agent and
each of the other Banks (and solely for the benefit of the Agent and each of the
other Banks) that it in good faith is not relying upon any "margin stock" (as
defined in Regulation U) as collateral in the extension or maintenances of the
credit provided for in this Agreement.
Section 10.13. Consent to Jurisdiction. (a) Each Borrower irrevocably
submits to the jurisdiction of any federal or New York State court sitting in
New York City over any suit, action or proceeding arising out of or relating to
this Agreement or any Note of such Borrower. Each Borrower irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
brought in such court and any claim that any suit, action or proceeding brought
in such a court has been brought in an inconvenient forum. Each Borrower agrees
that a final, nonappealable judgment in any such suit, action or proceeding
brought in such a court shall be conclusive and binding upon such Borrower and
may be enforced in any federal or New York State court sitting in New York City
(or any other courts to the jurisdiction of which such Borrower is or may be
subject) by a suit upon such judgment, provided that services of process is
effected upon such Borrower in one of the manners specified in subsection (c) of
this Section or as otherwise permitted by law.
(b) Appointment of Agent. Each Foreign Subsidiary Borrower irrevocably
designates and appoints CT Corporation System, having an office on the date
hereof at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent, to
accept and acknowledge on such Foreign Subsidiary Borrower's behalf services of
any and all process which may be served in any suit, action or proceeding of
the nature referred to in subsection (a) of this Section in any federal or New
York State court sitting in New York City. Each such Foreign Subsidiary Borrower
covenants and agrees to maintain the
82
designation and appointment of such an authorized agent until all amounts
payable hereunder shall have been paid in full in accordances with the
provisions hereof or thereof and the Commitments shall have terminated. If any
such agent shall cease so to act, each Foreign Subsidiary Borrower covenants and
agrees to designate and appoint without delay another such agent satisfactory to
the Agent and to promptly deliver to the Agent evidence in writing of such other
agent's acceptances of such appointment.
(c) Service of Process. Each Borrower hereby consents to process being served
in any suit, action or proceeding referred to in the first sentence of
subsection (a) of this Section in any federal or New York State court sitting in
New York City (i) if such Borrower is a Foreign Subsidiary Borrower, by service
of process upon the agent of such Foreign Subsidiary Borrower for service of
process appointed as provided in subsection (b) of this Section (provided that,
to the extent lawful and possible, written notice of said service upon such
agent shall be mailed by registered or certified air mail, postage prepaid,
return receipt requested, to such Foreign Subsidiary Borrower at its address
specified in Section 10.01 or to any other address of which such Foreign
Subsidiary Borrower shall have given written notice to the Agent) and (ii) if
such Borrower is not a Foreign Subsidiary Borrower, by mailing a copy thereof by
registered or certified air mail, postage prepaid, return receipt requested, to
such Borrower at its address specified in Section 10.01 or to any other address
of which such Borrower shall have given written notices to the Agent. Each
Borrower irrevocably waives, to the fullest extent permitted by law, all claim
of error by reason of any such service in any suit, action or proceeding brought
by the Agent or any Bank. Each Borrower agrees that such service shall be deemed
in every respect effective service of process upon such Borrower in any such
suit, action or proceeding and shall, to the fullest extent permitted by law, be
taken and held to be valid and personal service upon and personal delivery to
such Borrower.
(d) No Limitation on Service or Suit. Nothing in this Article shall affect
the right of the Agent or any Bank to serve process in any other manner
permitted by law or limit the right of the Agent or any Bank to bring
proceedings against any Borrower in the courts of the jurisdiction of the Bank's
Lending Office or the courts of any jurisdiction or jurisdictions in which such
Borrower has any assets.
83
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
THE COMPANY
ATLANTIC RICHFIELD COMPANY
By /s/ ▇▇▇▇▇ ▇. Dallas
-----------------------------------
▇▇▇▇▇ ▇. Dallas
Vice President
and Treasurer
Address for Notices:
Atlantic Richfield Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Assistant Treasurer, Banking
Telex No.: 677415
answerback: ARCO PLAZA LFA
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
84
COMMITMENTS BANKS
-----------
$96,666,666.67 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Title: Associate
$90,000,000 BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
------------------------
Title: Vice President
$90,000,000 CHEMICAL BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Title: Managing Director
$90,000,000 CITIBANK, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Title: Vice President
85
$90,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ L. ▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: Senior Vice President
$90,000,000 NATIONSBANK OF TEXAS, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Vice President
$90,000,000 UNION BANK OF SWITZERLAND
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Vice President
By /s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
$80,000,000 NATIONAL WESTMINSTER BANK PLC
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Vice President
$80,000,000 THE TORONTO DOMINION BANK
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Title: Mgr. Cr. Admin.
86
$80,000,000 PNC BANK, NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Vice President
$80,000,000 THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Senior Vice President
$80,000,000 FIRST INTERSTATE BANK OF CALIFORNIA
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Vice President
By /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Assistant Vice President
$80,000,000 THE CHASE MANHATTAN BANK, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Vice President
$66,666,666.67 CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By /s/ Xavier Ratouis
-------------------------------
Title: Senior Vice President
87
$66,666,666.66 FUJI BANK, LTD.
By /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
Title: Joint General Manager
$66,666,666.67 THE DAI-ICHI KANGYO BANK, LTD.
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Title: Senior Vice President and
Joint General Manager
$66,666,666.67 INDUSTRIAL BANK OF JAPAN, LTD.
By /s/ Kazutaka Kiyoto
----------------------
Title: Senior Vice President
$66,666,666.66 THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
Los Angeles Agency
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Title: Vice President
$40,000,000 THE BANK OF NOVA SCOTIA
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Title: Assistant Agent
88
$40,000,000 CREDIT SUISSE
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Member of Senior Management
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Member of Senior Management
$40,000,000 MELLON BANK, N.A.
By /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
$40,000,000 SOCIETE GENERALE
By /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
$40,000,000 THE SUMITOMO BANK, LIMITED
By /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Joint General Manager
$40,000,000 BARCLAYS BANK PLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Title: Associate Director
89
$40,000,000 THE SANWA BANK, LIMITED
LOS ANGELES BRANCH
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Vice President
$40,000,000 UNION BANK
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Assistant Vice President
$30,000,000 THE FIRST NATIONAL BANK OF BOSTON
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
$30,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------
Title: Senior Vice President
$30,000,000 BANK OF MONTREAL
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Title: Director
90
$30,000,000 THE NORTHERN TRUST COMPANY
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: Vice President
$30,000,000 SWISS BANK CORPORATION
By /s/ H. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Title: Associate Director
Merchant Banking
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Title: Director
Merchant Banking
$30,000,000 WESTPAC BANKING CORPORATION
By /s/ R. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------
Title: Senior Vice President
$30,000,000 NATIONAL AUSTRALIA BANK
LIMITED A.C.N.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
$10,000,000 KREDIETBANK N.V.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: Vice President
91
$10,000,000 NATIONAL BANK OF ALASKA
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Benz
----------------------------
Title: Vice President
-------------------
Total Commitments
$2,000,000,000
===================
92
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Title: Associate
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Telex: 177615
93
SCHEDULE I
EURO-CURRENCY PAYMENT OFFICES OF THE AGENT
Domestic Lending Office ▇▇▇▇▇▇ Guaranty Trust Company
of New York
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Loan Department
Euro-Currency Lending ▇▇▇▇▇▇ Guaranty Trust Company
Office of New York
Nassau Bahamas Branch
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Loan Department
Other Euro-Currency Payment Offices for the Agent for other currencies will be
subsequently provided.
▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
________, 19__
For value received, [NAME OF BORROWER], a corporation (the
"Borrower"), promises to pay to the order of (the "Bank"), for the account
of its Applicable Lending Office, the unpaid principal amount of each Loan made
by the Bank to the Borrower pursuant to the Credit Agreement referred to below
on the last day of the Interest Period relating to such Loan. The Borrower
promises to pay interest on the unpaid principal amount of each such Loan on the
dates and at the rate or rates provided for in the Credit Agreement. All such
payments of principal and interest shall be made (i) if in Dollars, in lawful
money of the United States in Federal or other immediately available funds at
the office of ▇▇▇▇▇▇ Guaranty Trust Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ or (ii) if in any other currency, in such funds as may then be
customary for the settlement of international transactions in such other
currency at the place specified for the payment thereof pursuant to the Credit
Agreement.
All Loans made by the Bank, the respective maturities thereof and all
repayments of the principal thereof shall be recorded by the Bank and, and may,
if such Bank so elects in connection with any transfer or enforcement of its
Note of any Borrower, be endorsed by the Bank on the schedule attached hereto,
or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This note is one of the Notes referred to in the $2,000,000,000 Credit
Agreement dated as of December 15, 1994 among Atlantic Richfield Company,
certain subsidiaries of Atlantic Richfield Company, the banks listed on the
signature pages thereof and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Agent
(as the same may be amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
95
Pursuant to the Credit Agreement, payment of principal and interest on this
Note is unconditionally guaranteed by Atlantic Richfield Company, a Delaware
corporation.*
[NAME OF BORROWER]
------------------------
By:
Title:
---------------------------
*Include this sentence in the Note of each Subsidiary Borrower.
96
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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97
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: ▇▇▇▇▇▇ Guaranty Trust Company of New York
(the Agent")
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
From: [Name of Borrower]
Re: $2,000,000,000 Credit Agreement dated as of December 15, 1994 (the
"Credit Agreement") among Atlantic Richfield Company, certain
subsidiaries of Atlantic Richfield Company, the Banks listed on the
signature pages thereof and the Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement that
we request Money Market Quotes [from Banks incorporated in, or formed under the
laws of, [name of country] or Banks whose Money Market Lending Office for the
Borrowings(s) set forth below will be located in such country (a "Qualifying
Bank")]* for the following proposed Money Market Borrowing(s):
Date of Borrowing:
----------------
Principal Amount** Interest Period***
------------------ ------------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Rate]. [The
applicable base rate is the London Interbank Offered Rate.]
-----------------------
* Include when Borrower has requested Money Market Quotes only from
Qualifying Banks pursuant to Section 2.03(b)(iii).
** Amount must be $5,000,000 or a larger multiple of $1,000,000.
*** Not less than one month (LIBOR Auction) or not less than 7 days (Absolute
Rate Auction), subject to the provisions of the definition of Interest Period.
98
Capitalized terms used herein have the meanings assigned to them in the
Credit Agreement.
[NAME OF BORROWER]
By:
Title:
99
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
[address of Bank]
[Date]
Re: Invitation for Money Market Quotes
to [Name of Borrower] (the "Borrower")
Pursuant to Section 2.03 of the $2,000,000,000 Credit Agreement dated as of
December 15, 1994 (the "Credit Agreement") among Atlantic Richfield Company,
certain subsidiaries of Atlantic Richfield Company, the Banks listed on the
signature pages thereof and the undersigned, as Agent, we are pleased on behalf
of the Borrower to invite you [in your capacity as a Qualifying Bank]* to submit
Money Market Quotes to the Borrower for the following proposed Money Market
Borrowing(s):
Date of Borrowing:
-----------------
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Rate]. [The
applicable base rate is the London Interbank Offered Rate.]
Please respond to this invitation by no later than [3:00 p.m.] [10:00 a.m.]
[9:30 a.m.] [(London Time)] [(New York City time)] on [date].
----------------------
* Include when Borrower has requested Money Market Quotes only from
Qualifying Banks pursuant to Section 2.03(b)(iii).
100
Capitalized terms used herein have the meanings assigned to them in the
Credit Agreement.
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
----------------------------------
By: Authorized Officer
101
EXHIBIT D
Form of Money Market Quote
To: ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Funding Services -- Loan Sale Group
Re: Money Market Quote to [Name of Borrower] (the "Borrower")
In response to your invitation on behalf of the Borrower dated ,
19 , we hereby make the following Money Market Quote on the following terms:
1. Quoting Bank: _______________________
2. Person to contact at Quoting Bank:
--------------------------
3. Date of Borrowing: __________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
--------- --------- ------------ --------------------
$
$
[provided, that the aggregate principal amount of Money Market Loans for which
the above offers may be accepted shall not exceed $ .]**
* As specified in the related Invitation for Money Market Quotes.
(notes continued on following page)
102
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the $2,000,000,000 Credit
Agreement dated as of December 15, 1994 (the "Credit Agreement") among Atlantic
Richfield Company, certain subsidiaries of Atlantic Richfield Company, the Banks
listed on the signature pages thereof and yourselves, as Agent, irrevocably
obligates us to make the Money Market Loan(s) for which any offer(s) are
accepted, in whole or in part. Capitalized terms used herein have the meanings
assigned to them in the Credit Agreement
Very truly yours,
[NAME OF BANK]
-------------------------------------
By: Authorized Officer
Dated:
---------
** Principal amount bid for each Interest Period may not exceed principal amount
requested. Specify aggregate limitation if the sum of the individual offers
exceeds the amount the Bank is willing to lend. Bids must be made for $5,000,000
(or the Approximate Equivalent Amount thereof) or a larger multiple of
$1,000,000 (or the Approximate Equivalent Amount thereof).
*** Not less than one month or not less than 7 days, as specified in the
related Invitation for Money Market Quotes.
**** Margin over or under the London Interbank Offered Rate determined for the
applicable Interest Period. Specify percentage (rounded to the nearest 1/10,000
of 1%) and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (rounded to the nearest 1/10,000th of
1%). [5. We hereby represent and warrant, as of the date hereof and as of the
Date of Borrowing set forth in clause 3 above, that we are a Qualifying Bank.]
103
EXHIBIT E
Certificate of Incumbency
I, , [Secretary/Assistant Secretary] of [name of Borrower] (the
"Borrower"), hereby certify as follows:
(1) Each of the following named individuals is an Authorized Officer (as that
term is defined in the $2,000,000,000 Credit Agreement dated as of December 15,
1994 among Atlantic Richfield Company, certain subsidiaries of Atlantic
Richfield Company, the Banks named therein and ▇▇▇▇▇▇ Guaranty Trust Company of
New York, as Agent (the "Credit Agreement")) of the Borrower and each has been
duly elected to and is now holding the office indicated, and the signature
appearing opposite each name is the genuine signature of such Authorized
Officer:
Title Name Signature
----- ---- ---------
(2) Each of the following named individuals has been duly designated as an
"Authorized Representative" (as that term is defined in the Credit Agreement) of
the Borrower, and the signature appearing opposite each name is the genuine
signature of such Authorized Representative:
Title Name Signature
----- ---- ---------
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the
Borrower this day of 19 .
----------------------------------
Secretary/Assistant Secretary
[SEAL]
104
I, [name], [Treasurer/Assistant Secretary] of [name of Borrower], do hereby
certify that is, and at all times since , 19 has been, the duly
elected or appointed, qualified and acting [Secretary/Assistant Secretary] of
the Borrower and that the signature set forth above is his genuine signature.
IN WITNESS WHEREOF, I have hereunto set my hand this day of , 19 .
----------------------------------
Treasurer/Assistant Secretary
105
EXHIBIT F
OPINION OF
COUNSEL FOR THE BORROWER
[Dated as provided in
Section 3.01 of the
Credit Agreement]
To the Banks and the Agent
Referred to Below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
I am ___________________ of Atlantic Richfield Company and as such have
acted as counsel for [name of Borrower] (the "Borrower") in connection with the
$2,000,000,000 Credit Agreement dated as of December 15, 1994 (the "Credit
Agreement") among Atlantic Richfield Company, certain subsidiaries of Atlantic
Richfield Company, the banks listed on the signature pages thereof and ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Agent. Terms defined in the Credit
Agreement are used herein as therein defined.
In connection with the opinions expressed below, I have examined originals or
copies, certified or otherwise identified to my satisfaction, of such documents,
instruments and corporate records as I have deemed necessary to express the
opinions hereinafter set forth. As to any facts material to the following
opinions which I did not independently establish or verify, I have relied, to
the extent I deem such reliance proper, upon information obtained from public
officials and officers and employees of the Borrower.
For purposes of this opinion, I have assumed the genuineness of all
signatures, other than signatures of officers and employees of the Borrower or
any of its subsidiaries, appearing on the documents which I have examined, the
authenticity of all documents submitted to me as originals, and the conformity
to the originals of all documents submitted to me as copies and the authenticity
of the originals of such copies.
106
Upon the basis of the foregoing, I am of the opinion that:
l. (a) The Borrower (i) is a corporation duly incorporated, validly existing
and in good standing under the laws of [the jurisdiction of its incorporation]
and (ii) either is qualified to do business and in good standing in each
jurisdiction where the ownership of its properties or the conduct of its
business requires such qualification or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction.
(b) The Borrower has all corporate power and authority, governmental permits,
licenses, consents, authorizations, orders and approvals and other
authorizations as are necessary to carry on its business substantially as
presently conducted.
(c) The execution, delivery and performance of this Agreement [and of the
Notes of the Borrower],* and Borrowings under the Credit Agreement by the
Borrower, are within its corporate power and authority and have been duly
authorized by all necessary corporate proceedings.
(d) Neither such authorization nor the execution, delivery and performance by
the Borrower of the Credit Agreement [or of the Notes of the Borrower
thereunder], nor any Borrowing thereunder by the Borrower when made, will
conflict with, result in a breach of or constitute a default under any of the
terms, conditions or provisions of any law or any regulation, or, to the best of
my knowledge, any order, writ, injunction or decree of any court or governmental
authority or of the Certificate of Incorporation or By-Laws of the Borrower or
result in the violation or contravention of, or the acceleration of any
obligation under, or cause the creation of any Mortgage on any of the properties
of the Borrower pursuant to the provisions of, any indenture, agreement or other
instrument representing Debt, or any other agreement material to the Company and
its Consolidated Subsidiaries, considered as a whole, to which it is a party or
by which it is bound.
(e) Assuming its due execution by the Banks and the Agent, the Credit
Agreement constitutes a valid and binding agreement of the Borrower [and each
Note of the Borrower constitutes a valid and binding obligation of the Borrower,
in each case] enforceable in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and by general principles of equity.
2. Except as disclosed in writing to the Banks, there is no action, suit or
proceeding pending or, to my knowledge, threatened against or affecting the
Borrower
------------------------
* References to Notes of the Borrower to be required only if Notes are being
delivered pursuant to the terms of the Credit Agreement.
107
or any of its subsidiaries in any court or before or by any arbitrator,
governmental department, agency or instrumentality, which is reasonably likely
to materially and adversely affect the ability of the Borrower to perform its
obligations under the Credit Agreement and the Notes of the Borrower or which in
any manner draws into question the validity of the Credit Agreement [or the
Notes of the Borrower].
3. No consent, authorization, order or approval of (or filing or registration
with) any governmental commission, board or other regulatory authority (other
than routine reporting requirements) is required for the execution, delivery and
performance by the Borrower of the Credit Agreement or the Notes of the
Borrower or for Borrowings under the Credit Agreement.
*4. Each of the Borrower's Material Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted except for licenses, authorizations, consents or
approvals the absence of which will not materially affect the business of the
Borrower and its Consolidated Subsidiaries taken as a whole.
I am a member of the Bars of the State[s] of ___________ and I do not purport
to be an expert on the laws of any jurisdictions other than the foregoing, the
general corporation law of the State of Delaware, and United States federal law.
This opinion is limited in all respects to such laws.*
This opinion is furnished to you solely for the benefit of you and your
Participants in connection with the transactions contemplated by the Credit
Agreement and may not be used for any other purpose without my prior written
consent.
Very truly yours,
---------------------
* Include this paragraph if the Company is the Borrower.
108
EXHIBIT G
OPINION OF
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, SPECIAL COUNSEL
FOR THE AGENT
[Dated as provided in
Section 3.01 of the
Credit Agreement]
To the Banks and the Agent
Referred to Below
C/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the "Credit
Agreement") dated as of December 15, 1994 among Atlantic Richfield Company,
certain subsidiaries of Atlantic Richfield Company, the banks listed on the
signature pages thereof (the "Banks") and ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as Agent (the "Agent"), and have acted as special counsel for the Agent
for the purpose of rendering this opinion pursuant to Section 3.01(iv) of the
Credit Agreement. Terms defined in the Credit Agreement are used herein as
therein defined.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, we are of the opinion that:
[1. The execution, delivery and performance by the Borrower of the Credit
Agreement [and its Notes] are within the Borrower's corporate powers and have
been duly authorized by all necessary corporate action.
2.] The Credit Agreement constitutes a valid and binding agreement of the
Borrower [and each Note of the Borrower constitutes a valid and binding
obligation of the Borrower, in each case] enforceable in accordance with its
terms, except as the
109
same may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by general principles of equity.
We are members of the Bar of the State of New York and the foregoing opinion
is limited to the laws of the State of New York, the federal laws of the United
States of America [and the General Corporation Law of the State of Delaware] .
In giving the foregoing opinion, (i) we express no opinion as to the effect (if
any) of any law of any jurisdiction (except the State of New York) in which any
Bank is located which limits the rate of interest that such Bank may charge or
collect and (ii) we have relied, without independent investigation, as to all
matters governed by the laws of [Borrower's jurisdiction of incorporation], upon
the opinion of , dated 19 , a copy of which has been delivered to you.
This opinion is rendered solely to you in connection with the above matter.
This opinion may not be relied upon by you for any other purpose or relied upon
by any other person without our prior written consent.
Very truly yours,
110
EXHIBIT H
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of ________, 19__ among [ASSIGNOR] (the "Assignor"),
[ASSIGNEE] (the "Assignee"), ATLANTIC RICHFIELD COMPANY (the "Company") and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement") relates
to the $2,000,000,000 Credit Agreement dated as of December 15, 1994 among the
Company, the Assignor and the other Banks party thereto, as Banks, and the Agent
(the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans in an aggregate principal amount at any time
outstanding not to exceed $___;
WHEREAS, Syndicated Loans made by the Assignor under the Credit Agreement in
the aggregate principal amount of $_________ are outstanding at the date hereof;
and
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights of
the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $_________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Syndicated Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
SECTION l. Definitions. All capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the Assignee
all of the rights of the Assignor under the Credit Agreement to the extent of
the Assigned Amount, and the Assignee hereby accepts such assignment from the
Assignor and assumes all of the obligations of the Assignor under the Credit
Agreement to the extent of the Assigned Amount, including the purchase from the
111
Assignor of the corresponding portion of the principal amount of the Syndicated
Loans made by the Assignor outstanding at the date hereof. Upon the execution
and delivery hereof by the Assignor, the Assignee, the Company and the Agent and
the payment of the amounts specified in Section 3 required to be paid on the
date hereof (i) the Assignee shall, as of the date hereof, succeed to the rights
and be obligated to perform the obligations of a Bank under the Credit Agreement
with a Commitment in an amount equal to the Assigned Amount, and (ii) the
Commitment of the Assignor shall, as of the date hereof, be reduced by a like
amount and the Assignor released from its obligations under the Credit Agreement
to the extent such obligations have been assumed by the Assignee. The assignment
provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds an amount equal to $_______*. It is understood that
facility fees with respect to the Assigned Amount accrued to the date hereof are
for the account of the Assignor and such fees accruing from and including the
date hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under the Credit Agreement
which is for the account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such other party's interest
therein and shall promptly pay the same to such other party.
SECTION 4. Consent of the Company and the Agent. This Agreement is
conditioned upon the consent of the Company and the Agent pursuant to Section
10.07(c) of the Credit Agreement. The execution of this Agreement by the Company
and the Agent is evidence of this consent. Pursuant to Section 10.07(c) the
Company agrees to execute and deliver a Note [and to cause each Subsidiary
Borrower to execute and deliver a Note] payable to the order of the Assignee to
evidence the assignment and assumption provided for herein.**
SECTION 5. Non-Reliance on Assignor. The Assignor makes no representation or
warranty in connection with, and shall have no responsibility with respect to,
the solvency, financial condition, or statements of any Borrower, or the
validity and enforceability of the obligations of any Borrower in respect of the
Credit Agreement or any Note. The Assignee acknowledges that it has,
independently and without reliance on the Assignor, and based on such documents
and information as it has
--------------------
* Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee, net of any portion of any
upfront fee to be paid by the Assignor to the Assignee. It may be preferable in
an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum.
112
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of the Borrowers.
SECTION 6. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered by their duly authorized officers as of the date first above written.
[ASSIGNOR]
-------------------------------
By:
Title:
[ASSIGNEE]
-------------------------------
By:
Title:
ATLANTIC RICHFIELD COMPANY
-------------------------------
By:
Title:
113
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as Agent
-------------------------------
By:
Title:
114
EXHIBIT I
NOTICE OF EFFECTIVENESS
December 15, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Assistant Treasurer, Banking
Dear Sir or Madam:
We hereby notify you that the $2,000,000,000 Credit Agreement dated as of
December 15, 1994 among Atlantic Richfield Company, the banks listed on the
signature pages thereof and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Agent,
has become effective as of the date hereof in accordance with Section 10.06
thereof.
Very truly yours,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Agent
By
----------------------------------------
Title:
115