▇▇▇▇-▇▇▇▇▇ CORPORATION
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$250,000,000 364-DAY
REVOLVING CREDIT AGREEMENT
Dated as of February 26, 1999
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ROYAL BANK OF CANADA,
as Administrative Agent and Arranger
and
The Lenders Now or Hereafter Parties Hereto
TABLE OF CONTENTS
Page
ARTICLE IDefinitions......................................................................1
SECTION 1.01. Defined Terms.....................................................1
SECTION 1.02. Classification of Loans and Borrowings...........................16
SECTION 1.03. Other Terms......................................................16
SECTION 1.04. Accounting Terms; GAAP...........................................17
SECTION 1.05. Euros as Payment for National Currencies.........................17
SECTION 1.06. Calculation of Dollar Equivalent Amounts.........................17
ARTICLE IIThe Credits....................................................................17
SECTION 2.01. Commitments......................................................17
SECTION 2.02. Loans and Borrowings.............................................18
SECTION 2.03. Requests for Revolving Borrowings................................18
SECTION 2.04. Funding of Borrowings............................................19
SECTION 2.05. Interest Elections...............................................20
SECTION 2.06. Termination or Reduction of Commitments..........................21
SECTION 2.07. Repayment of Loans; Evidence of Debt.............................21
SECTION 2.08. Prepayment of Loans..............................................22
SECTION 2.09. Fees.............................................................23
SECTION 2.10. Interest.........................................................24
SECTION 2.11. Alternate Rate of Interest.......................................25
SECTION 2.12. Illegality; Increased Costs......................................27
SECTION 2.13. Break Funding Payments...........................................28
SECTION 2.14. Taxes............................................................28
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Set-offs......30
SECTION 2.16. Mitigation Obligations; Replacement of Lenders...................32
SECTION 2.17. Foreign Available Amount Designation.............................32
SECTION 2.18. Extension of Stated Revolving Loan Maturity Date.................32
SECTION 2.19. Addition or Termination of Subsidiary Borrowers..................33
SECTION 2.20. Change in Control................................................34
SECTION 2.21. Conversion to Term Loans.........................................34
ARTICLE IIIRepresentations and Warranties................................................34
SECTION 3.01. Corporate Existence and Power....................................35
SECTION 3.02. Corporate and Governmental Authorization; No Contravention.......35
SECTION 3.03. Binding Effect...................................................35
SECTION 3.04. Financial Information............................................35
SECTION 3.05. Litigation.......................................................36
SECTION 3.06. Compliance with ERISA............................................36
SECTION 3.07. Environmental Matters............................................36
SECTION 3.08. Taxes............................................................37
SECTION 3.09. Investment Company Act...........................................37
SECTION 3.10. Public Utility Holding Company Act...............................37
SECTION 3.11. Use of Proceeds..................................................37
SECTION 3.12. Disclosure.......................................................37
SECTION 3.13. Year 2000 Compliance.............................................37
SECTION 3.14. Material Subsidiaries............................................38
ARTICLE IVConditions.....................................................................38
SECTION 4.01. Effective Date...................................................38
SECTION 4.02. Each Credit Event................................................39
ARTICLE VAffirmative Covenants...........................................................40
SECTION 5.01. Information......................................................40
SECTION 5.02. Payment of Taxes.................................................41
SECTION 5.03. Insurance........................................................42
SECTION 5.04. Conduct of Business and Maintenance of Existence.................42
SECTION 5.05. Compliance with Laws.............................................42
SECTION 5.06. Compliance with Environmental Laws...............................42
SECTION 5.07. Use of Proceeds..................................................43
SECTION 5.08. Notice of Changed Credit Rating..................................43
SECTION 5.09. Subsidiary Borrowers.............................................43
SECTION 5.10. Year 2000 Compliance.............................................43
ARTICLE VINegative Covenants.............................................................43
SECTION 6.01. Compliance with ERISA............................................43
SECTION 6.02. Limitation on Secured Debt.......................................44
SECTION 6.03. Consolidations, Mergers and Sales of Assets......................45
SECTION 6.04. Transactions with Affiliates.....................................46
ARTICLE VIIGuaranty......................................................................46
SECTION 7.01. The Guaranty.....................................................46
SECTION 7.02. Bankruptcy.......................................................47
SECTION 7.03. Nature of Liability..............................................47
SECTION 7.04. Independent Obligation...........................................47
SECTION 7.05. Authorization....................................................47
SECTION 7.06. Subordination....................................................48
SECTION 7.07. Waiver...........................................................48
SECTION 7.08. Legal Limitations of Liability...................................49
SECTION 7.09. Discharge Only Upon Payment......................................49
SECTION 7.10. Subrogation......................................................49
ARTICLE VIIIEvents of Default............................................................50
ARTICLE IXThe Administrative Agent.......................................................52
ARTICLE XMiscellaneous...................................................................54
SECTION 10.01. Notices.........................................................54
SECTION 10.02. Waivers; Amendments.............................................54
SECTION 10.03. Expenses; Indemnity; Damage Waiver..............................55
SECTION 10.04. Successors and Assigns..........................................56
SECTION 10.05. Survival........................................................58
SECTION 10.06. Counterparts; Integration; Effectiveness........................58
SECTION 10.07. Severability....................................................59
SECTION 10.08. Right of Setoff.................................................59
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process......59
SECTION 10.10. WAIVER OF JURY TRIAL............................................60
SECTION 10.11. Headings........................................................60
SECTION 10.12. Confidentiality.................................................60
SECTION 10.13. Currency Indemnity..............................................60
SECTION 10.14. Subsidiary Borrower Several Obligations.........................61
SECTION 10.15. Joint and Several Obligations of the Company....................61
SECTION 10.16. Interest Rate Limitation........................................62
SECTION 10.17. International Banking Facilities................................62
SCHEDULES:
Schedule A -- Commitments
Schedule B -- Pricing Schedule
Schedule C -- Notice Schedule
Schedule 3.14 -- Material Subsidiaries
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance Exhibit B-1 -- Form of Opinion of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Exhibit B-2 -- Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Exhibit C -- Form of Joinder Agreement Exhibit D -- Form of Cash
Collateral Account Agreement Exhibit E -- Form of Auditor's Certificate
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT is dated as of February 26, 1999, by
and among ▇▇▇▇-▇▇▇▇▇ CORPORATION, a Delaware corporation (the "Company"), the
Subsidiary Borrowers parties hereto, the Lenders now or hereafter parties
hereto, and ROYAL BANK OF CANADA ("RBC"), as Administrative Agent.
IT IS AGREED by the parties hereto as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABN Facility A" means Facility A of and as defined in the Amended and
Restated Credit Agreement dated as of April 28, 1997 (as amended April 26, 1998)
with the Company and ▇▇▇▇-▇▇▇▇▇ Oil (U.K.) PLC as Borrowers, the banks, and ABN
AMRO Bank N.V. as Agent.
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted CD Rate" means, with respect to any Dollar Borrowing based on
the Fixed CD Rate for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to the sum of (a) the
Fixed CD Rate for such Interest Period multiplied by the Reserve Rate, plus (b)
the Assessment Rate.
"Adjusted EURIBOR" means, with respect to any Euro Borrowing or NC
Borrowing based on EURIBOR, for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the sum of (a)
EURIBOR applicable to Euro deposits for such Interest Period multiplied by the
Reserve Rate, plus (b) the Associated Costs Rate.
"Adjusted Eurodollar LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the sum of (a) the LIBO Rate
applicable to Eurodollar deposits for such Interest Period multiplied by the
Reserve Rate, plus (b) the Associated Costs Rate.
"Adjusted Sterling LIBO Rate" means, with respect to any Sterling
Borrowing based on the LIBO Rate for any Interest Period, an interest rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the sum
of (a) the LIBO Rate applicable to Sterling deposits for such Interest Period
multiplied by the Reserve Rate, plus (b) the Associated Costs Rate.
"Administrative Agent" means RBC, in its capacity as administrative
agent for the Lenders hereunder.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agency Account" means the account of the Administrative Agent as
specified by the Administrative Agent in the relevant payment notice to the
Person by whom such payment is to be made.
"Agreed Currency" has the meaning ascribed thereto in Section 10.13.
"Agreement" means this Revolving Credit Agreement, as amended,
modified, supplemented or restated from time to time.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Royal Bank Prime Rate and (ii) the sum of one-half of one
percent per annum plus the Federal Funds Effective Rate for such day.
"Alternate Currency" means Sterling, Euro or any National Currency.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentage for any
Lender shall be the percentage of the total Credit Exposure of all Lenders
represented by such Lender's Credit Exposure, in each case as of the date of
determination.
"Applicable Rate" means, for any day, with respect to any EURIBOR Loan
or LIBOR Loan, or with respect to the facility fees or utilization fees payable
hereunder, as the case may be, the applicable rate per annum set forth in the
Pricing Schedule.
"Assessment Rate" means, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "A" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in Dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
"Associated Costs Rate" means, in relation to each Loan or Borrowing
denominated in an Alternate Currency and each Eurodollar Loan or Borrowing, the
percentage rate from time to time determined by the Administrative Agent or by
any Lender (with written notice thereof to the Administrative Agent and the
Company) as reflecting the cost, loss or difference in return which would be
suffered or incurred by the Administrative Agent (if it funded such Loan or
Borrowing) or by such Lender with respect to such Loan or Borrowing as a result
of:
(a) funding any special deposit, cash ratio deposit or other reserve
required to be placed with the Bank of England (or any other
Governmental Authority which replaces all or any of its functions);
and/or
(b) any charge or other reserve requirement imposed by the Financial
Services Authority of the United Kingdom (or any other Governmental
Authority which replaces all or any of its functions); and/or
(c) any charge or other reserve requirement imposed by the European
Central Bank, the Governing Council thereof or the European System of
Central Banks (or any other Governmental Authority which replaces all
or any of such Persons' functions)
in respect of eligible liabilities (assuming these to be in excess of any stated
minimum) or any similar concept, which relate to funding such Loan or Borrowing
or which has or would have the effect of reducing the rate of return of the
Administrative Agent (if it funded such Loan or Borrowing) or of such Lender
with respect to such Loan or Borrowing. As used in this definition, "eligible
liabilities" shall have the meaning ascribed to it by the Bank of ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ or by the Bank of England (as may be appropriate) at the time of
determination.
"Availability Period" means the period from and including the Effective
Date to but excluding the earlier of the Revolving Loan Maturity Date and the
date of termination of the Commitments.
"Benefit Liabilities" has the meaning as defined in Section 4001(a)(16)
of ERISA.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means the Company or any Subsidiary Borrower, and
"Borrowers" means collectively the Company and the Subsidiary Borrowers.
"Borrowing" means Loans of the same Type, made, converted or continued
on the same date, in the same currency, and, in the case of CD Loans, EURIBOR
Loans or LIBOR Loans, as to which a single Interest Period is in effect.
"Borrowing Request" means a request by any Borrower, for a Revolving
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ are
authorized or required by law to remain closed, unless such term is used in
connection with (i) a CD Borrowing or an ABR Borrowing, in which case such day
shall be a Business Day if commercial banks are open for business in New York
City, New York, and (ii) a National Currency Borrowing or Euro Borrowing for
which funds are to be paid or made available in such National Currency or in
Euros on such day, in which case such day shall not be a Business Day unless
commercial banks are open for international business (including dealing in
deposits in such National Currency or in Euros, as the case may be) in New York
City, New York, London, England, and the place where such funds are to be paid
or made available.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Cash Collateral Account Agreement" shall mean each Cash Collateral
Account Agreement entered into pursuant to Section 2.08(c), each such agreement
substantially in the form of Exhibit D.
"CD", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted CD Rate.
"Change in Control" means (a) the acquisition by any Person or two or
more Persons acting as a group (within the meaning Rule 13d-3 of the Securities
Exchange Act of 1934) of greater than 40% of the outstanding Voting Stock of the
Company or (b) any merger or consolidation to which the Company is a party, or
the transfer, conveyance or lease of all or substantially all of the assets of
the Company to another Person, if immediately following such merger,
consolidation, transfer, conveyance or lease a majority of the directors of the
surviving corporation (or the corporation that is the beneficial owner of the
assets transferred or conveyed or the lessee of the assets leased) are other
than Continuing Directors or (c) the Company ceases to own, directly or
indirectly, 100% of the capital stock of each Subsidiary Borrower. "Continuing
Director" means a member of the board of directors of the Company who either (i)
was a member of such board of directors on the date hereof or (ii) was
designated (before initial election as a director) as a Continuing Director by a
majority of the then Continuing Directors or (iii) was nominated or appointed to
such board of directors by a majority of the then Continuing Directors.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.12(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Term Loans.
"Code" means the United States Internal Revenue Code of 1986, as
amended from time to time, or any successor statute, together with all
regulations and interpretations thereof or thereunder by the United States
Internal Revenue Service (or any successor).
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and to convert the Revolving Loans outstanding on
the Revolving Loan Maturity Date to Term Loans, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.06 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04. The initial
amount of each Lender's Commitment under the Agreement is set forth on Schedule
A, or in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Commitment, as applicable. The initial amount of the Lenders'
Commitments to make Loans hereunder is $250,000,000 in the aggregate at any one
time of Dollar Borrowings and the Dollar Equivalent of Alternate Currency
Borrowings at such time.
"Commitment Expiration Date" with respect to a Non-Extending Lender,
has the meaning ascribed thereto in Section 2.18.
"Company" means ▇▇▇▇-▇▇▇▇▇ Corporation, a Delaware corporation.
"Consolidated Subsidiary" means, at any date, any Subsidiary of the
Company or other entity the accounts of which would be consolidated with those
of the Company in its consolidated financial statements if such statements were
prepared as of such date.
"Consolidated Tangible Net Worth" means at any date the consolidated
Stockholders' Equity of the Company and its Consolidated Subsidiaries less their
consolidated Intangible Assets plus the aggregate amount of non-cash write
downs, all determined as of such date. For purposes of this definition,
"Intangible Assets" means the amount of (i) all write-ups (other than write-ups
resulting from foreign currency translations and write-ups of assets of a going
concern business made within 12 months after the acquisition of such business)
subsequent to December 31, 1997 in the book value of any asset owned by the
Company or a Subsidiary of the Company, and (ii) all unamortized debt discount
and expense (to the extent, if any, recorded as an unamortized deferred charge),
unamortized deferred charges, goodwill, patents, trademarks, service marks,
trade names, anticipated future benefit of tax loss carry-forwards, copyrights,
organization or developmental expenses.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Exposure" means, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender's Loans.
"Debt Leverage Ratio" means, on any day, the ratio of (a) the Total
Indebtedness of the Company and its Subsidiaries on a consolidated basis as of
the date of determination to (b) EBITDAX for the Rolling Period ending on the
last day of the most recent Fiscal Quarter as of the date of determination.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Dollars" and "$" mean United States Dollars, and "Dollar" when used in
reference to any Loan or Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are denominated in United States Dollars.
"Dollar Equivalent" means the amount of Dollars equivalent to a given
amount of an Alternate Currency determined by using the quoted spot rate at
which the Administrative Agent offers to exchange Dollars for such Alternate
Currency in New York City at 10:00 a.m. (New York City time) on the date of
determination.
"Domestic Available Amount" means the aggregate amount of Loans
available to the Company and the Domestic Subsidiary Borrowers under this
Agreement, which amount shall not at any time exceed the Lenders' total
aggregate Commitments less the Foreign Available Amount. The initial Domestic
Available Amount is $165,000,000 of availability in the aggregate at any one
time of Dollar Borrowings and the Dollar Equivalent of Alternate Currency
Borrowings at such time.
"Domestic Subsidiary Borrower" means, as of the date hereof, ▇▇▇▇-▇▇▇▇▇
Credit LLC, together with any of the Company's Subsidiaries designated as a
"Domestic Subsidiary Borrower" pursuant to and in accordance with Section
2.19(a), other than any such Subsidiary that ceases to be a Subsidiary Borrower
pursuant to and in accordance with Section 2.19(c).
"Duff & ▇▇▇▇▇▇" means Duff & ▇▇▇▇▇▇ Credit Rating Co.
"EBITDAX" means, as to the Company and its Subsidiaries on a
consolidated basis and for any period, without duplication, the amount equal to
net income determined in accordance with GAAP, plus to the extent deducted from
net income, Interest Expense, depreciation, oil and gas exploration expenses,
including, without limitation, dry-hole costs, deferred management fees
permitted under Section 6.06, other non-cash expenses, and income and state
franchise tax expenses; provided, that, extraordinary gains or losses for any
such period, including but not limited to gains or losses on the disposition of
assets, shall not be included in EBITDAX.
"EC Treaty" means the Treaty establishing the European Community
(signed in Rome on March 25, 1957), as amended by the Treaty on European Union
(signed in Maastricht on February 7, 1992), as further amended or supplemented
from time to time.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 10.02).
"Effective Modification Date" means the date on which the Existing
Agreement shall have been amended, modified, restated, or replaced to the
satisfaction of the Administrative Agent so that the provisions corresponding to
the definitions of Indebtedness Threshold, ERISA Obligations Threshold, Material
Financial Obligations and Final Judgment Threshold as set forth therein are
substantively identical to those set forth herein and to be effective on and
after the Effective Modification Date.
"EMU Legislation" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by the European Council, the
Participating Member States or other Governmental Authority of the European
Union, relating in any way to the Euro and the European Economic and Monetary
Union.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company or any Subsidiary of the Company
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company (and other ERISA Affiliates), is
treated as a single employer under Section 414(b) or (c) of the Code or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as
a single employer under Section 414 of the Code.
"ERISA Obligation Threshold" means (a) $5,000,000 prior to the
Effective Modification Date and (b) $50,000,000 on and after the Effective
Modification Date.
"EURIBOR" means, on any day, the rate appearing on Page 248 of the
Telerate Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to Euro deposits in the
Euro-zone interbank market) at approximately 11:00 a.m., Brussels time, two
TARGET Business Days prior to such day, as the average rate for time deposits in
Euros offered in the Euro-zone interbank market as calculated by the Banking
Federation of the European Union and the Financial Market Association. In the
event that such rates are not available at such time for any reason, then
"EURIBOR" shall mean, for any day, an interest rate per annum equal to the
Euro-zone interbank market offering rate for time deposits of 5,000,000 Euros
designated as "EURIBOR" and sponsored jointly by the Banking Federation of the
European Union and the Financial Market Association (or such rate as designated
by any company established or designated by such joint sponsors for the purposes
of compiling and publishing such rate). "EURIBOR", when used in reference to any
Loan or Borrowing, indicates that such Loan, or the Loans comprising such
Borrowing, are denominated in either Euros or a National Currency and bearing
interest at a rate determined by reference to Adjusted EURIBOR.
"Euro" means the lawful single currency of Participating Member States
of the European Union adopted in accordance with the EC Treaty and, when used in
reference to any Loan or Borrowing, indicates that such Loan, or the Loans
comprising such Borrowing, are denominated in such currency.
"Eurodollar", when used in reference to any Loan or Borrowing,
indicates that such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted Eurodollar LIBO Rate.
"European Council" means the council of 15 member states of the
European Union.
"European Union" means the European Union established under the EC
Treaty.
"Euro-zone" means the region comprised of the Participating Member
States.
"Event of Default" has the meaning assigned to such term in Article
VIII.
"Existing Agreement" means the Amended and Restated Credit Agreement
for $325,000,000 dated as of December 4, 1996 (as amended) with the Company and
▇▇▇▇-▇▇▇▇▇ Credit LLC, as borrowers, the banks, and ▇▇▇▇▇▇ Guaranty Trust
Company of New York as agent.
"Extension Request" shall have the meaning ascribed thereto in Section
2.19.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the United States Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Fee Letter" means the letter agreement dated February 25, 1999,
regarding fees, executed by RBC in its capacity as the Administrative Agent and
accepted and agreed to by the Company, as amended or modified from time to time.
"Final Judgment Threshold" means a final judgment in the aggregate
amount of (a) $10,000,000 prior to the Effective Modification Date and (b)
$50,000,000 on or after the Effective Modification Date.
"Final Maturity Date" means, if the Revolving Loans are converted to
Term Loans pursuant to Section 2.21, then with respect to any Term Loan, the
date that is two years from the Revolving Loan Maturity Date as of the time of
such conversion.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of any Person.
"Fiscal Quarter" shall mean the fiscal quarter of the Company, ending
on the last day of each March, June, September and December of each year.
"Fixed CD Rate" means, with respect to any CD Borrowing for any
Interest Period, the arithmetic average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the prevailing rates per annum bid at or about 10:00 a.m.,
New York City time, to the Administrative Agent on the first Business Day of
such Interest Period by three negotiable certificate of deposit dealers of
recognized standing selected by the Administrative Agent for the purchase at
face value of negotiable certificates of deposit of major United States money
center banks in a principal amount of $5,000,000 and with a maturity comparable
to such Interest Period.
"Foreign Available Amount" means the aggregate amount of Loans
available to the Foreign Subsidiary Borrowers under this Agreement, which amount
shall equal initially $85,000,000 of availability in the aggregate at any time
of Dollar Borrowings and the Dollar Equivalent of Alternate Currency Borrowings
at such time. The Foreign Available Amount may be increased or decreased from
time to time at the option of the Company pursuant to the terms of Section 2.17;
provided, however, that the Foreign Available Amount shall not at any time
exceed $120,000,000 in the aggregate of Dollar Borrowings and the Dollar
Equivalent of Alternate Currency Borrowings at such time.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than United States of America, any State thereof or the
District of Columbia.
"Foreign Subsidiary Borrower" means, as of the date hereof, ▇▇▇▇-▇▇▇▇▇
(G.B.) Limited, ▇▇▇▇-▇▇▇▇▇ Resources (U.K.) Limited, ▇▇▇▇-▇▇▇▇▇ Oil (U.K.) PLC,
▇▇▇▇-▇▇▇▇▇ North Sea (U.K.) Limited, ▇▇▇▇-▇▇▇▇▇ GmbH and ▇▇▇▇-▇▇▇▇▇ Chemical
GmbH, together with any of the Company's Subsidiaries designated as a "Foreign
Subsidiary Borrower" pursuant to and in accordance with Section 2.19(b), other
than any such Subsidiary that ceases to be a Subsidiary Borrower pursuant to and
in accordance with Section 2.19(c).
"GAAP" means generally accepted accounting principles in the United
States of America, the United Kingdom or any Participating Member State, as
applicable.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, including,
without limitation, the European Union and the European Council, whether
federal, state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guaranteed Obligations" means all obligations of the Subsidiary
Borrowers (i) to each Lender for the full and prompt payment when due (whether
at the stated maturity, by acceleration or otherwise) of the principal and
interest on each note, if any, issued by such Borrowers to such Lender, and
Loans made under this Agreement, together with all the other obligations and
liabilities (including, without limitation, indemnities, fees and interest
thereon) of the Subsidiary Borrowers to such Lender now existing or hereafter
incurred under, arising out of or in connection with this Agreement and the due
performance and compliance with all the terms, conditions and agreements
contained in this Agreement by the Subsidiary Borrowers and (ii) to each Lender
and each Affiliate of a Lender which enters into a Hedging Agreement with a
Subsidiary Borrower, which by its express terms are entitled to the benefit of
the Guaranty of the Company pursuant to Article VII, the full and prompt payment
when due (whether by acceleration or otherwise) of all obligations of such
Subsidiary Borrower owing under such Hedging Agreement, whether now in existence
or hereafter arising, and the due performance and compliance with all terms,
conditions and agreements contained therein.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances, (k)
all production payments, proceeds production payments or similar obligations of
such Person, and (l) the net amount of obligations of such Person under Hedging
Agreements. The Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than, with respect to the
Administrative Agent, any Lender or any other recipient of any payment to be
made by or on account of any obligation of the Company or any Subsidiary
Borrower hereunder, (a) income or franchise taxes imposed on (or measured by)
its net income by the United States of America, or by the jurisdiction under the
laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which any Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Company under Section 2.16(b) or 2.18(d)), any withholding
tax that is imposed on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party to this Agreement (or designates a new lending
office) or is attributable to such Foreign Lender's failure to comply with
Section 2.14(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Company with respect to such
withholding tax pursuant to Section 2.14(a).
"Interest Election Request" means a request by a Borrower to convert or
continue a Borrowing in accordance with Section 2.05.
"Interest Expense" shall mean, as to the Company and its Subsidiaries
on a consolidated basis and for any period, without duplication, total interest
expenses, whether paid or accrued as liabilities (including the interest
component of Capital Lease Obligations), with respect to all outstanding
Indebtedness, including, without limitation, all commissions, discounts and
other fees and charges owed with respect to any financing or letters of credit
and net costs under any Hedging Agreement to the extent that such costs are
included within interest expense under GAAP.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December, and (b) with respect to
any CD Loan, EURIBOR Loan or LIBOR Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
EURIBOR Borrowing or a LIBOR Borrowing, with an Interest Period of more than
three months' duration or a CD Borrowing with an Interest Period of more than 90
days' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration or 90 days' duration, as the case
may be, after the first day of such Interest Period.
"Interest Period" means (a) with respect to any EURIBOR Borrowing or
LIBOR Borrowing, the period commencing on the date of such Borrowing and ending
on the numerically corresponding day in the calendar month that is one, two,
three or six months thereafter, or (if available to all Lenders) ending on the
day that is one, two or three weeks thereafter, as the Company may elect and,
(b) with respect to any CD Borrowing, the period commencing on the date of such
Borrowing and ending 30, 60, 90 or 120 days thereafter, as the Company may
elect; provided, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a EURIBOR Borrowing or a LIBOR Borrowing,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the immediately preceding Business
Day, and (ii) any Interest Period pertaining to a EURIBOR Borrowing or a LIBOR
Borrowing that commences on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a
Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Joinder Agreement" means a Joinder Agreement, substantially in the
form of Exhibit C hereto, duly executed and delivered by the Company and the
Subsidiary Borrower party thereto.
"▇▇▇▇-▇▇▇▇▇ Chemical GmbH" means ▇▇▇▇-▇▇▇▇▇ Chemical GmbH, a company
duly formed with limited liability in the Federal Republic of Germany.
"▇▇▇▇-▇▇▇▇▇ Credit LLC" means ▇▇▇▇-▇▇▇▇▇ Credit LLC, a limited
liability company organized under the laws of Delaware.
"▇▇▇▇-▇▇▇▇▇ (G.B.) Limited" means ▇▇▇▇-▇▇▇▇▇ (G.B.) Limited, a
company organized under the laws of England.
"▇▇▇▇-▇▇▇▇▇ GmbH" means ▇▇▇▇-▇▇▇▇▇ GmbH, a company duly formed with
limited liability in the Federal Republic of Germany.
"▇▇▇▇-▇▇▇▇▇ North Sea (U.K.) Limited" means ▇▇▇▇-▇▇▇▇▇ North Sea
(U.K.) Limited, a company organized under the laws of England.
"▇▇▇▇-▇▇▇▇▇ Oil (U.K.) PLC" means ▇▇▇▇-▇▇▇▇▇ Oil (U.K.) PLC, a
company organized under the laws of England.
"▇▇▇▇-▇▇▇▇▇ Resources (U.K.) Limited" means ▇▇▇▇-▇▇▇▇▇ Resources
(U.K.) Limited, a company organized under the laws of England.
"Lenders" means the Persons listed on Schedule A and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance.
"LIBOR", when used in reference to any Loan or Borrowing, indicates
that such Loan, or the Loans comprising such Borrowing, are bearing interest at
a rate determined by reference to the Adjusted Eurodollar LIBO Rate or the
Adjusted Sterling LIBO Rate, as the case may be.
"LIBO Rate" means, with respect to any LIBOR Borrowing, for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to Dollar deposits or Sterling deposits, as
applicable, in each case in the London interbank market) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such Interest
Period, as the rate for Dollar deposits or Sterling deposits, as applicable,
with a maturity comparable to such Interest Period. In the event that such rate
is not available at such time for any reason, then the "LIBO Rate" with respect
to such LIBOR Borrowing for such Interest Period shall be the average of the
respective rates (rounded upwards if necessary, to the next 1/16 of 1%) at which
Dollar deposits or Sterling deposits, as applicable, of 5,000,000 units of the
applicable currency and for a maturity comparable to such Interest Period are
offered by the principal London office of the Reference Banks in immediately
available funds in the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.
"Loans" means the loans made by the Lenders to any Borrower pursuant to
this Agreement and includes both Revolving Loans and Term Loans.
"Margin Stock" means, "margin stock" as such term is defined in
Regulation T, U or X of the Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
the Company and its Consolidated Subsidiaries taken as a whole or (b) the
ability of the Company to perform any of its obligations under this Agreement.
"Material Financial Obligation(s)" means a principal or face amount of
Indebtedness of the Company and/or one or more of its Subsidiaries exceeding in
the aggregate (a) $10,000,000 prior to the Effective Modification Date and (b)
$50,000,000 on or after the Effective Modification Date.
"Material Subsidiary" means, at any time, any Subsidiary of the Company
either (a) meeting the definition of a "significant subsidiary" with respect to
the Company contained as of the date hereof in Regulation S-X of the SEC or (b)
constituting a Subsidiary Borrower.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means any employee pension benefit plan within the
meaning of Section 4001(a)(3) of ERISA or any employee pension benefit plan as
to which the Company or any of its ERISA Affiliates would be treated as a
contributing employer under Section 4212(c) of ERISA if it were to be
terminated.
"National Currency" or "NC" means the lawful currency (other than the
Euro) of any Participating Member State, which is freely transferable in
accordance with EMU Legislation and in which dealings in deposits of which are
carried out in the Euro-zone interbank market, and, when used in reference to
any Loan or Borrowing, indicates that such Loan, or the Loans comprising such
Borrowing, are denominated in a National Currency. Any given National Currency
shall be available hereunder only as and to the extent permitted by EMU
Legislation.
"Non-Extending Lender" has the meaning ascribed thereto in Section
2.18.
"Notice Schedule" means the schedule of addresses for notice of the
Lenders attached as Schedule C.
"Oryx Facility" means the $500,000,000 Revolving Credit Facility dated
October 17, 1997 with Oryx Energy Company, as borrower, NationsBank of Texas,
N.A., as administrative agent, NationsBank ▇▇▇▇▇▇▇▇▇▇ Securities, Inc., as
arranger, Chase Securities Inc., as syndication agent, Barclays Bank PLC, as
documentation agent, and the lenders party thereto.
"Oryx Merger" means the merger between the Company and Oryx Energy
Company as described in the Agreement and Plan of Merger, dated October 14,
1998, between the Company and Oryx Energy Company.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Participating Member State" shall mean each member state so described
in any legislative measures of the European Council for the introduction of,
changeover to, or operation of, a single or unified European currency being in
part the implementation of the third stage of the economic and monetary union as
contemplated in the EC Treaty.
"Payment Currency" has the meaning ascribed thereto in Section 10.13.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions under
ERISA.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Company or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pricing Schedule" means the Pricing Schedule attached as Schedule B.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, tangible or intangible.
"Rating" means each rating with respect to the Company's Rating Debt as
determined from time to time by each Rating Agency. In each occurrence within
this Agreement (and the Schedules) where the possible Levels of Ratings are
indicated, the first listed Rating is the Rating available from S&P and/or Duff
& ▇▇▇▇▇▇ and the second listed Rating is the Rating available from ▇▇▇▇▇'▇.
"Rating Agencies" shall mean Duff & ▇▇▇▇▇▇, Moody's and S&P.
"Rating Debt" means senior, unsecured, long-term indebtedness for
borrowed money of the Company that is not guaranteed by any other Person or
subject to any other credit enhancement.
"RBC" means Royal Bank of Canada, a Canadian chartered bank, in its
individual capacity.
"Reference Banks" means Royal Bank of Canada, ABN AMRO Bank N.V., and
NationsBank, N.A.
"Refunding Borrowing" means any Borrowing or that portion thereof,
which, after application of the proceeds thereof, results in no net increase in
the outstanding principal amount of Loans made by the Lenders to any Borrower.
"Register" has the meaning set forth in Section 10.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Credit Exposures
and unused Commitments representing 66 2/3% or more of the sum of the total
Credit Exposures and unused Commitments at such time.
"Reserve Rate" means a fraction (expressed as a decimal), the numerator
of which is the number one and the denominator of which is the number one minus
the aggregate of the maximum reserve percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a decimal established
by the Board, the Financial Services Authority of the United Kingdom or any
other Governmental Authority performing similar functions and with jurisdiction
over the Lenders (a) with respect to the Adjusted CD Rate for new negotiable
nonpersonal time deposits in Dollars of over $100,000 with maturities
approximately equal to the applicable Interest Period, and (b) with respect to
EURIBOR or the LIBO Rate for funding of Borrowings denominated in Dollars or
Alternate Currencies (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). To the extent any Loans are subject to such reserve
requirements the amount of such reserve requirements shall be calculated without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under the applicable regulations. The Reserve
Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"Restricted Property", to the extent of the Company's direct or
indirect interest therein, means:
(a) any property interest owned by the Company or any
Consolidated Subsidiary in reserves of oil, gas or other minerals which
are "proved reserves", as defined in the regulations promulgated by the
SEC or, in the absence of any applicable definition, reserves which
geological, geophysical and engineering data demonstrate with
reasonable certainty to be recoverable in future years from known
reservoirs or deposits under existing economic and operating
conditions, i.e. existing prices (with consideration of changes in
existing prices provided by contractual arrangements) and costs; and
(b) any manufacturing property and related equipment of the
Company or any Consolidated Subsidiary.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"Revolving Loan Maturity Date" means the later of (a) February 25, 2000
and (b) if maturity is extended pursuant to Section 2.18, such extended maturity
date as determined pursuant to such Section.
"Rolling Period" means any period of four consecutive Fiscal Quarters.
"Royal Bank Prime Rate" means the rate of interest per annum determined
by RBC, acting through its New York Branch, in New York City from time to time
in its sole discretion as its Dollar prime commercial lending rate for such day.
"S&P" means Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SEC" means United States Securities and Exchange Commission or any
successor entity.
"Sterling" means Great Britain Pounds Sterling and, when used in
reference to any Loan or Borrowing, indicates that such Loan, or the Loans
comprising such Borrowing, are denominated in Great Britain Pounds Sterling.
"Stockholders' Equity" means, at any date, the consolidated
stockholders' equity of the Company and its Consolidated Subsidiaries as would
be shown on a balance sheet prepared in accordance with GAAP of such date.
"Subsidiary" means, with respect to any Person at any date, any
corporation, limited liability company, partnership, association or other entity
the accounts of which would be consolidated with those of such Person in its
consolidated financial statements if such financial statements were prepared in
accordance with GAAP as of such date, as well as any other corporation, limited
liability company, partnership, association or other entity (a) of which
securities or other ownership interests representing more than 50% of the equity
or more than 50% of the Voting Stock or, in the case of a partnership, more than
50% of the general partnership interests are, as of such date, owned, Controlled
or held, or (b) that is, as of such date, otherwise Controlled, by such Person
or one or more Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such Person.
"Subsidiary Borrower" means any Domestic Subsidiary Borrower or any
Foreign Subsidiary Borrower.
"TARGET" means the Trans-European Automated Real-time Gross Settlement
Express Transfer system.
"TARGET Business Day" means any Business Day that is not a day on which
TARGET is authorized or required by law to remain closed.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loan" means a Revolving Loan that is converted to a term Loan
pursuant to Section 2.21.
"Total Indebtedness" shall mean, at any time and without duplication,
(a) all obligations of the Company and its Subsidiaries on a consolidated basis
for borrowed money and any other obligations evidenced by bonds, debentures,
notes, or other similar instruments plus (b) all Guarantees by the Company and
its Subsidiaries on a consolidated basis of the type of obligations described in
clause (a) of this definition.
"Transactions" means the execution, delivery and performance by each of
the Borrowers of this Agreement, the borrowing of Loans and the use of the
proceeds thereof.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted Eurodollar LIBO Rate, the
Adjusted Sterling LIBO Rate, the Adjusted CD Rate, the Alternate Base Rate or
Adjusted EURIBOR.
"U.K. Double Taxation Treaty" shall mean any convention between the
government of the United Kingdom and any other government for the avoidance of
double taxation and the prevention of fiscal evasion with respect to taxes on
income and capital gains.
"U.K. Tax Act" means the United Kingdom Income and Corporation Taxes
Act of 1988, as amended from time to time, or any successor statute, together
with all regulations and interpretations thereof or thereunder by the United
Kingdom Inland Revenue (or any successor).
"Unfunded Benefit Liabilities" means the "amount of unfunded benefit
liabilities" as defined in Section 4001(a)(18) of ERISA).
"U.S. Double Taxation Treaty" shall mean any convention between the
government of the United States and any other government for the avoidance of
double taxation and the prevention of fiscal evasion with respect to taxes on
income and capital gains.
"Voting Stock" means capital stock of any class or classes (however
designated) having ordinary voting power for the election of directors of the
Company, other than stock having such power only by reason of the happening of a
contingency.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, the term "Borrowing" denotes the aggregation of Loans of one or
more Lenders to be made to a single Borrower pursuant to Article II on a single
date and for a single Interest Period. Borrowings are classified for purposes of
this Agreement by reference to the Type of Loans comprising such Borrowing
(e.g., a "Sterling LIBOR Borrowing") or the Class of Loans comprising such
Borrowing (e.g., a "Revolving Borrowing") or the Type and Class of Loans
comprising such Borrowing (e.g., a "Sterling LIBOR Revolving Borrowing"). Loans
are classified for purposes of this Agreement by reference to the Class of such
Loans (e.g., a "Revolving Loan") or the Type of such Loan (e.g., a "Sterling
LIBOR Loan") or the Type and Class (e.g., a "Sterling LIBOR Revolving Loan").
SECTION 1.03. Other Terms. The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
article, section, schedule, exhibit and like references are to this Agreement
unless otherwise specified. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise, any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), any reference herein
to any Person shall be construed to include such Person's successors and
assigns, and the words "asset" and "property" shall be construed to have the
same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. 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 GAAP, as in effect
from time to time, applied on a basis consistent (except for changes concurred
in by the Company's independent public accountants and disclosed in the
financial statements) with the most recent audited consolidated financial
statements of the Company and its Consolidated Subsidiaries delivered to the
Lenders.
SECTION 1.05. Euros as Payment for National Currencies. Subject to any
applicable EMU Legislation, with respect to each Loan made hereunder and
denominated in a National Currency, it is agreed that the applicable Borrower
may make any payment with respect thereto, whether of principal or interest, in
either such National Currency or in Euros, and if in Euros, then in an amount in
Euros equal to the applicable National Currency calculated pursuant to the then
applicable conversion rate between the Euro and such National Currency. As of
December 31, 1998, the European Council caused the conversion rates for the
National Currencies and the Euro to be irrevocably fixed.
SECTION 1.06. Calculation of Dollar Equivalent Amounts. For all
purposes of this Agreement where it is or becomes necessary to calculate the
amount of availability of the Commitments, the Domestic Available Amount or the
Foreign Available Amount or, in connection therewith, the outstanding amount of
the Loans, the Revolving Credit Exposure or the Credit Exposure, each such
calculation shall be made in accordance with the context of how any such term is
used, by determining the Dollar amount, the Dollar Equivalent of the applicable
Alternative Currencies or the sum of the Dollar amount plus the Dollar
Equivalent of the applicable Alternate Currencies, as applicable.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender severally agrees to (i) make Revolving Loans (a) to
the Company and the Domestic Subsidiary Borrowers or any one or more of them, up
to the Domestic Available Amount, and (b) to the Foreign Subsidiary Borrowers or
any one or more of them, up to the Foreign Available Amount, from time to time
during the Availability Period in an aggregate principal amount that will not
result in such Lender's Revolving Credit Exposure exceeding such Lender's
Commitment; and (ii) at the election of the Company, to convert the principal
amount of any Revolving Loans remaining outstanding on the Revolving Loan
Maturity Date to Term Loans. Within the foregoing limits and subject to the
terms and conditions set forth herein, any Borrower may make more than one
Borrowing on any Business Day and may borrow, prepay and reborrow Revolving
Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as part
of a Borrowing consisting of Loans made by the Lenders ratably in accordance
with their respective Commitments. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Subject to Section 2.11, each Revolving Borrowing shall be
made entirely in LIBOR Loans, EURIBOR Loans, CD Loans or ABR Loans, as the
Company may request in accordance herewith. Each Lender, at its option, may make
any LIBOR Loan or EURIBOR Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of a Borrower to repay such Loans made to
it in accordance with the terms of this Agreement; and provided further that
each Lender shall have an office, or a branch, or an Affiliate available to it
and located in the appropriate jurisdiction through which such Lender can make
any Eurodollar Loan or any Loan denominated in an Alternate Currency as required
under this Agreement.
(c) At the commencement of each initial Interest Period for
(i) any Borrowing comprised of LIBOR Loans, EURIBOR Loans or CD Loans, such
Borrowing shall be in an aggregate amount that is an integral multiple of
1,000,000 units of the applicable currency thereof and not less than 10,000,000
units of such currency. At the time that each Borrowing comprised of ABR Loans
is made, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $10,000,000; provided that such ABR
Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the Domestic Available Amount or the Foreign Available Amount, as
applicable. Borrowings of more than one Type and Class may be outstanding at the
same time; provided that there shall not at any time be more than a total of ten
CD, EURIBOR and LIBOR Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, (i)
the Company, on behalf of itself or any Borrower, shall not be entitled to
request, or to elect to convert (except for a conversion to a Term Loan pursuant
to Section 2.21) or continue, any Revolving Loan Borrowing if the Interest
Period requested with respect thereto would end after the Revolving Loan
Maturity Date and (ii) the Company, on behalf of itself or any Borrower, shall
not be entitled to request, or elect to convert or continue, any Term Borrowing
if the Interest Period requested with respect thereto would end after the Final
Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
Borrowing, the Company shall notify the Administrative Agent of such request by
hand delivery or telecopy of a Borrowing Request or by telephone (a) in the case
of a Eurodollar LIBOR Borrowing, not later than 11:00 a.m., New York City time,
three Business Days before the date of the proposed Borrowing, (b) in the case
of a Sterling LIBOR Borrowing or a EURIBOR Borrowing, not later than 11:00 a.m.,
New York City time, four Business Days before the date of the proposed
Borrowing, (c) in the case of a CD Borrowing, not later than 11:00 a.m., New
York City time, two Business Days before the date of the proposed Borrowing, and
(d) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City
time, one Business Day before the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Company. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the applicable Borrower;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be made in Dollars or an
Alternate Currency, and if such Borrowing is to be made in an Alternate
Currency, which Alternate Currency;
(v) whether such Borrowing is to be a CD Borrowing, an ABR
Borrowing, a EURIBOR Borrowing or a LIBOR Borrowing;
(vi) in the case of a CD Borrowing, a EURIBOR Borrowing or
LIBOR Borrowing, the initial Interest Period to be applicable thereto,
which shall be a period contemplated by the definition of the term
"Interest Period"; and
(vii) the location and number of the applicable Borrower's
account to which funds are to be disbursed, which shall comply with the
requirements of Section 2.04.
If no election as to the Type of any Revolving Borrowing denominated in Dollars
is specified, then the requested Revolving Borrowing shall be an ABR Borrowing.
If no Interest Period is specified with respect to any requested CD, EURIBOR or
LIBOR Revolving Borrowing, then the Company shall be deemed to have selected an
Interest Period of 30 days' duration, in the case of a CD Borrowing, or one
month's duration, in the case of a EURIBOR Borrowing or a LIBOR Borrowing. If no
election as to the currency of the Borrowing is specified, then the Company
shall be deemed to have selected Dollars; provided that in no event shall a
Borrowing deemed to be denominated in Dollars bear interest at a rate other than
the Adjusted Eurodollar LIBO Rate, the Adjusted CD Rate or the Alternate Base
Rate. Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, in the case of
Dollar Borrowings, and by 12:00 noon, London time, in the case of Borrowings
denominated in an Alternate Currency, to the applicable Agency Account for the
account of the applicable Borrower. The Administrative Agent will make such
Loans available to the applicable Borrower by promptly crediting the amounts so
received, in like funds, to an account of such Borrower designated by the
Company in the applicable Borrowing Request.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the applicable Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to the applicable Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in
the case of the applicable Borrower, the interest rate applicable to ABR Loans.
If such Lender pays such amount to the Administrative Agent, then such amount
shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.05. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a CD, EURIBOR or LIBOR Revolving Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
Company may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a CD, EURIBOR or LIBOR Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Company may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Company
shall notify the Administrative Agent of such election by hand delivery or
telecopy of an Interest Election Request or by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Company were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Company.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing, a CD Borrowing, a EURIBOR Borrowing or a LIBOR Borrowing;
(iv) if the resulting Borrowing is a CD Borrowing, a EURIBOR
Borrowing or a LIBOR Borrowing, the Interest Period to be applicable
thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term "Interest Period".
If any such Interest Election Request requests a CD Borrowing, a EURIBOR
Borrowing or a LIBOR Borrowing, but does not specify an Interest Period, then
the Company shall be deemed to have selected an Interest Period of 30 days'
duration, in the case of a CD Borrowing, or one month's duration, in the case of
a EURIBOR Borrowing or a LIBOR Borrowing.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Company fails to deliver a timely Interest Election
Request with respect to a CD Borrowing, a EURIBOR Borrowing or a LIBOR Borrowing
prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period, (i)
if such Borrowing is denominated in Dollars, it shall be converted to an ABR
Borrowing and (ii) if such Borrowing is denominated in an Alternate Currency,
the Company shall be deemed to have selected an Interest Period of one month's
duration. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Company, then, so long as an Event of
Default is continuing (i) no outstanding Borrowing denominated in Dollars may be
converted to or continued as a CD Borrowing or a LIBOR Borrowing and (ii) unless
repaid, (A) in the case of Borrowings denominated in Dollars, each CD Borrowing
and each LIBOR Borrowing shall be converted to an ABR Borrowing at the end of
the Interest Period applicable thereto, and (B) in the case of Borrowings
denominated in an Alternate Currency, the Company shall be deemed to have
selected an Interest Period of one month's duration.
SECTION 2.06. Termination or Reduction of Commitments.
(a) Unless previously terminated the Commitments shall
terminate on the Revolving Loan Maturity Date as provided in Section 2.21.
(b) The Company may at any time terminate, or from time to
time reduce, the Commitments with such reductions applicable in whole or in part
to the Domestic Available Amount or the Foreign Available Amount, at the option
of the Company; provided that (i) each reduction of the Commitments shall be in
an amount that is an integral multiple of $5,000,000 and not less than
$20,000,000 and (ii) the Company shall not terminate or reduce the Commitments
if, after giving effect to any concurrent prepayment of the Loans in accordance
with Section 2.08, (A) the sum of the Revolving Credit Exposures would exceed
the total Commitments, (B) with respect to the Company and the Domestic
Subsidiary Borrowers, the sum of the Revolving Credit Exposures attributable to
such Borrowers would exceed the Domestic Available Amount, and (C) with respect
to the Foreign Subsidiary Borrowers, the sum of the Revolving Credit Exposures
attributable to such Borrowers would exceed the Foreign Available Amount.
(c) The Company shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least five Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Company pursuant to this Section shall be irrevocable; provided that a notice of
termination of the Commitments delivered by the Company may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Company (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) Each Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each of its Revolving
Loans on the Revolving Loan Maturity Date (unless converted to Term Loans
pursuant to Section 2.21) and (ii) to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Term Loan on the Final
Maturity Date; provided, that the Revolving Loans made by a Non-Extending Lender
shall be repaid as provided in Section 2.18.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each Borrower to
such Lender resulting from each Loan made by such Lender to such Borrower,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder from a Borrower for the account of the
Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of each Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the applicable Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
(f) Any Loan made hereunder shall be repaid by the applicable
Borrower or Borrowers in the currency that such Loan was originally denominated
or deemed to be denominated; provided, however, that any Loan denominated in a
National Currency may be repaid in Euros in accordance with Section 1.05.
SECTION 2.08. Prepayment of Loans. (a) Any Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section;
provided that each prepayment of a Borrowing shall be in an amount that is an
integral multiple of $1,000,000 and not less than $10,000,000.
(b) The applicable Borrower shall notify the Administrative
Agent by telephone (confirmed immediately by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before the date of
prepayment, (ii) in the case of prepayment of a Sterling LIBOR Borrowing or a
EURIBOR Borrowing, not later than 11:00 a.m., New York City time, four Business
Days before the date of prepayment, (iii) in the case of prepayment of a CD
Borrowing, not later than 11:00 a.m., New York City time, two Business Days
before the date of prepayment, or (iv) in the case of prepayment of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.06, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.06. Promptly
following receipt of any such notice relating to a Borrowing, the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial prepayment
of any Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.02. Each
prepayment of a Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.10. Each prepayment shall include break funding
payments to the extent required by Section 2.13.
(c) In the event that (i) the aggregate principal amount of
all Loans under this Agreement exceeds the total aggregate Lenders' Commitments;
(ii) the aggregate principal amount of all Loans made to the Company and the
Domestic Subsidiary Borrowers exceeds the Domestic Available Amount; or (iii)
the aggregate principal amount of all Loans made to the Foreign Subsidiary
Borrowers exceeds the Foreign Available Amount; in each case as determined by
the aggregate of all applicable Dollar Borrowings and the Dollar Equivalent of
all applicable Alternate Currency Borrowings on the first Business Day of each
month then, at the request of the Administrative Agent, the Company shall, and
shall cause each Subsidiary Borrower to, prepay (A) in the case of clause (i)
above, immediately, and (B) in the case of clauses (ii) or (iii) above, within
three Business Days of such request, an amount equal to the excess described in
clauses (i), (ii), and (iii) above, as applicable, or in the case of clauses
(ii) and (iii) above, provide cash collateral by making a deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Lenders, of an amount in cash and in the same currency so as
to equal such excess as of such date plus any accrued and unpaid interest
thereon, which cash collateral shall be collaterally assigned as security
pursuant to the Cash Collateral Account Agreement, which agreement shall be
executed and delivered by the Borrowers to the Administrative Agent
contemporaneously with the payment of such cash collateral; provided that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to any Borrower described in clause (h) or (i) of Article VIII. Such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the obligations of the Borrowers under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrowers'
risk and expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to satisfy obligations of
the Borrowers under this Agreement. If any Borrower is required to provide an
amount of cash collateral hereunder as a result of a request from the
Administrative Agent for a prepayment under this Section, such amount (to the
extent not applied as aforesaid) shall be returned to such Borrower within three
Business Days after the earlier of (x) the first Business Day of a month that
the Administrative Agent determines that such cash collateral is no longer
required pursuant to the terms of the first sentence of this Section and (y) a
prepayment of the Loans in an amount equal to such cash collateral.
(d) If the Borrowers' fail to satisfy any one or more of the conditions
precedent set forth in Section 4.02 for any Refunding Borrowing, the Company and
each Subsidiary Borrower shall repay its Loans (i) in the case of LIBOR Loans,
EURIBOR Loans or CD Loans, on the last day of the Interest Period applicable
thereto, and (ii) in the case of Base Rate Loans, on or before the fifteenth day
following the day on which notice is given by the Company or the Administrative
Agent of the failure to satisfy any such condition precedent.
SECTION 2.09. Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Rate for facility fees on the daily amount of the
Commitment of such Lender (whether used or unused) during the period from and
including the Closing Date to but excluding the date on which such Commitment
terminates; provided that, if such Lender continues to have any Credit Exposure
after its Commitment terminates, then such facility fee shall continue to accrue
on the daily amount of such Lender's Credit Exposure from and including the date
on which its Commitment terminates to but excluding the date on which such
Lender ceases to have any Credit Exposure. Accrued facility fees shall be
payable in arrears on the last day of March, June, September and December of
each year and on the date on which the Commitments terminate, commencing on the
first such date to occur after the date hereof; provided that any facility fees
accruing after the date on which the Commitments terminate shall be payable on
demand. All facility fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(b) The Borrowers agree to pay to the Administrative Agent for
the account of each Lender a utilization fee which shall accrue at the
Applicable Rate for utilization fees on the daily amount of such Lender's Credit
Exposure during the time the sum of the total Credit Exposures equals or exceeds
33% of the total Commitments. Utilization fees shall be computed on the basis of
a year of 360 days and shall be payable in arrears on the last day of March,
June, September and December of each year. Each Subsidiary Borrower shall be
severally obligated to pay its portion of such fees with regard to its
Borrowings hereunder. Notwithstanding the foregoing, the Company agrees that it
will remain obligated for all such fees.
(c) The Company agrees to pay to the Administrative Agent, for
its own account, such fees as are set forth in the Fee Letter, on the dates and
in the manner specified therein.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent, for its own account
or for distribution, in the case of facility fees and utilization fees, to the
Lenders. Fees paid shall not be refundable under any circumstances.
SECTION 2.10. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest for each day such Loans are outstanding at the Alternate
Base Rate for such day. Any change in the Alternate Base Rate due to a change in
the Royal Bank Prime Rate or the Federal Funds Effective Rate shall be effective
from and including the effective date of such change in the Royal Bank Prime
Rate or the Federal Funds Effective Rate, as applicable.
(b) The Loans comprising each CD Borrowing shall bear interest
at the Adjusted CD Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate for LIBOR Borrowings plus 0.125% per annum.
(c) The Loans comprising each LIBOR Borrowing shall bear
interest at the Adjusted Eurodollar LIBO Rate or the Adjusted Sterling LIBO
Rate, as applicable, for the Interest Period in effect for such Borrowing plus
the Applicable Rate.
(d) The Loans comprising each EURIBOR Borrowing shall bear
interest at Adjusted EURIBOR for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(e) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the applicable
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to 2% plus the rate otherwise
applicable to such Loan as provided in the preceding paragraphs of this Section.
(f) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Commitments; provided that (i) interest accrued pursuant
to paragraph (e) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Loan prior to the end of the Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any EURIBOR,
CD or LIBOR Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(g) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest on ABR Loans calculated by reference to
the Royal Bank Prime Rate shall be computed on the basis of a year of 365 days
(or 366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). The
applicable interest rates shall be determined by the Administrative Agent in
accordance with the terms of this Agreement, and such determination shall be
conclusive absent manifest error.
(h) All interest accruing on any Loan hereunder shall be paid
in the currency in which such Loan is denominated or deemed to be denominated;
provided, however, that the interest accruing on any Loan denominated in a
National Currency may be paid in Euros in accordance with Section 1.05.
SECTION 2.11. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a CD Borrowing, a EURIBOR Borrowing or a LIBOR
Borrowing:
(a) the Administrative Agent:
(i) determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for
ascertaining the Adjusted CD Rate, the Adjusted Eurodollar LIBO Rate,
the Adjusted Sterling LIBO Rate or Adjusted EURIBOR, as applicable, for
such Interest Period; or
(ii) is advised by the Required Lenders that the Adjusted CD
Rate, the Adjusted Eurodollar LIBO Rate, the Adjusted Sterling LIBO
Rate, or Adjusted EURIBOR, as applicable, for such Interest Period will
not adequately and fairly reflect the cost to such Lenders (or Lender)
of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company, the
applicable Borrower and the Lenders by telephone or telecopy as promptly as
practicable thereafter and, until the Administrative Agent notifies the Company,
the applicable Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, (A) any Interest Election Request that requests the
conversion of any Borrowing to, or continuation of any Borrowing as, a CD
Borrowing, a EURIBOR Borrowing, or a LIBOR Borrowing, as applicable, shall be
ineffective, (B) if any Borrowing Request requests a CD Borrowing or a LIBOR
Borrowing, as applicable, if such Borrowing is to be denominated in Dollars, it
shall be made as an ABR Borrowing and (C) any request for a EURIBOR or LIBOR
Borrowing denominated in an Alternate Currency shall be ineffective; provided
that if the circumstances giving rise to such notice do not affect all such
Types of Borrowings, then the other unaffected Types of Borrowings shall be
permitted.
(b) If, in relation to any Borrowing or proposed Borrowing to
be denominated in an Alternate Currency, and with respect to any Interest Period
relative thereto:
(i) the Administrative Agent shall have received notification
from a Lender or Lenders whose participations in such Borrowing
constitute at least 50% by value of such Borrowing, that by reason of
circumstances affecting the London interbank market or the Euro-zone
interbank market, as applicable:
(A) deposits in the applicable Alternate Currency the
same period as such Interest Period will not be readily available to
them in the London interbank market or the Euro-zone interbank market,
as applicable, in sufficient amounts in the ordinary course of business
to fund their respective Loans in such Borrowing for such Interest
Period; or
(B) while such deposits are so available, the cost of
such deposits exceeds the applicable LIBO Rate as determined in
relation to such Borrowing for such Interest Period; or
(ii) the Administrative Agent shall have received notification
from any Lender (an "Affected Lender") that by reason of any change in
or the introduction (or re-introduction) of or any change in the
interpretation, administration or application of applicable law or
regulation (in each such case after the date hereof or, if later, the
date on which the Affected Lender became a part to this Agreement) it
is unable to fund its Loan in such Borrowing during such Interest
Period by deposit(s) in the applicable Alternate Currency obtained in
the London interbank market or the Euro-zone interbank market, as
applicable, in the ordinary course of business;
the Administrative Agent shall promptly give written notice of such
determination or notification to the Company and each of the Lenders.
(c) After the giving of any notice by the Administrative Agent
pursuant to Section 2.11(b) to the effect that it has received notification in
accordance with Section 2.11(b)(i)(A) or 2.11(b)(ii), no Lender or, as the case
may be, no Affected Lender shall be obliged to participate in the Borrowing to
which such notification relates unless such Borrowing is already then
outstanding. The giving of any notice by the Administrative Agent pursuant to
Section 2.11(b)(i)(B) shall not relieve any Lender of any obligation it may have
under this Agreement to make a Loan (including any Loan for which a Borrowing
Request was given prior to such notice by the Administrative Agent).
(d) During the period of 15 days after the giving of any
notice by the Administrative Agent pursuant to Section 2.11(b), the
Administrative Agent (in consultation with the Lenders or the Affected Lender)
shall negotiate with the Company in good faith with a view to ascertaining
whether a substitute basis (a ASubstitute Basis@) may be agreed for the making
of further Borrowings and/or the maintaining of any existing Borrowings by the
Lenders or such Affected Lender (as the case may be) to which such notice by the
Administrative Agent related for the Interest Period(s) applicable to those
Borrowings. If a Substitute Basis is agreed by all the Lenders or by the
Affected Lender (as the case may be) and the Company it shall apply in
accordance with its terms from the commencement of such Interest Period. The
Administrative Agent shall not agree to any Substitute Basis on behalf of any
Lender or Affected Lender without the prior consent of that Lender or Affected
Lender (as the case may be).
(e) If a Substitute Basis is not so agreed by the Company and
all the Lenders or the Affected Lender (as the case may be) by the end of such
15 day period, each Lender's or Affected Lender's then existing Loan or Loans to
which the notice by the Administrative Agent related shall bear interest during
the current Interest Period relative thereto at the rate which is the sum of (a)
the per annum rate certified by such Lender or Affected Lender to be its cost of
funds (from such sources as it may reasonably select out of those sources then
available to it) for such Interest Period in relation to such Borrowing
multiplied by the Reserve Rate, plus (b) the Associated Costs Rate, plus (c) the
Applicable Rate.
(f) So long as any Substitute Basis is in force or Section
2.11(e) shall apply in relation to any Borrowing, the Administrative Agent, in
consultation with the Company and each Lender (or, if applicable, Affected
Lender) shall from time to time, but not less often then monthly, review whether
or not the circumstances referred to in Section 2.11(b) still prevail with a
view to returning to the normal interest provisions of this Agreement.
SECTION 2.12. Illegality; Increased Costs. (a) If any Change in Law
shall make it unlawful or impossible for any Lender to make, maintain or fund
its Loans, such Lender shall so notify the Administrative Agent, the
Administrative Agent shall immediately give notice thereof to the other Lenders
and to the Company, whereupon until such Lender notifies the Company and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Lender to make such Loans shall be
suspended. If such Lender shall determine that it may not lawfully continue to
maintain and fund any of its outstanding Loans to maturity and shall so specify
in such notice, the applicable Borrower shall immediately prepay in full the
then outstanding principal amount of such Loan together with the accrued
interest thereon.
(b) If any Change in Law, including, without limitation,
reserve requirements imposed by the European System of Central Banks with
respect to the Euro or the National Currencies on or after January 1, 1999,
shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted CD Rate, the Adjusted
Eurodollar LIBO Rate, the Adjusted Sterling LIBO Rate or Adjusted
EURIBOR); or
(ii) impose on any Lender, the London interbank market or the
Euro-zone interbank market any other condition affecting this Agreement
or any Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Loan (or of maintaining its obligation to
make any such Loan) or to increase the cost to such Lender or to reduce the
amount of any sum received or receivable by such Lender hereunder (whether of
principal, interest or otherwise), then the applicable Borrower will pay to such
Lender such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.
(c) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the applicable Borrower will pay to
such Lender such additional amount or amounts as will compensate such Lender or
such Lender's holding company for any such reduction suffered.
(d) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case
may be, as specified in paragraph (b) or (c) of this Section shall be delivered
to the applicable Borrower and shall be conclusive absent manifest error. The
applicable Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
(e) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the applicable
Borrower shall not be required to compensate a Lender pursuant to this Section
for any increased costs or reductions incurred more than 270 days prior to the
date that such Lender notifies the applicable Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender's intention
to claim compensation therefor; provided further that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.13. Break Funding Payments. In the event of (a) the payment
of any principal of any CD Loan, EURIBOR Loan, or LIBOR Loan, other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any CD Loan, EURIBOR Loan or LIBOR Loan
other than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any Revolving Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.08(b) and is revoked in accordance
therewith), or (d) the assignment of any CD Loan, EURIBOR Loan, or LIBOR Loan
other than on the last day of the Interest Period applicable thereto as a result
of a request by the Company pursuant to Section 2.16, then, in any such event,
the applicable Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a CD Loan, EURIBOR Loan or
LIBOR Loan, such loss, cost or expense to any Lender shall be deemed to include
an amount determined by such Lender to be the excess, if any, of (i) the amount
of interest which would have accrued on the principal amount of such Loan had
such event not occurred, at the Adjusted CD Rate (in the case of a CD Loan),
Adjusted EURIBOR (in the case of a EURIBOR Loan) or the Adjusted Eurodollar LIBO
Rate or the Adjusted Sterling LIBO Rate, as applicable, (in the case of a LIBOR
Loan), that would have been applicable to such Loan, for the period from the
date of such event to the last day of the then current Interest Period therefor
(or, in the case of a failure to borrow, convert or continue, for the period
that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for Dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the applicable Borrower and shall be conclusive
absent manifest error. The applicable Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.14. Taxes. (a) Any and all payments by or on account of any
obligation of any Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if any
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or a Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the applicable Borrower shall make such
deductions and (iii) the applicable Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) In addition, each Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) Each Borrower shall indemnify the Administrative Agent and
each Lender, within 10 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of such Borrower hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to the applicable Borrower by a Lender or by the Administrative Agent on its own
behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by a Borrower to a Governmental Authority, the applicable
Borrower shall deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) As of the date on which any Lender becomes a party hereto,
such Lender confirms that with respect to its Loans to a United States person
(within the meaning of Section 7701(a)(30) of the Code), it is either (i) a
corporation organized under the laws of the United States of America or any
state thereof, entitled to complete exemption from United States withholding tax
imposed on or with respect to any payments, including fees, to be made to it
pursuant to this Agreement, or (ii) entitled to complete exemption from United
States withholding tax on interest imposed on or with respect to any payments of
interest to be made pursuant to this Agreement (A) under an applicable provision
of a U.S. Double Taxation Treaty, (B) because it is acting through a branch,
agency or office in the United States of America and any payment to be received
by it hereunder is effectively connected with a trade or business in the United
States of America, or (C) because it is a recipient of portfolio interest within
the meaning of Section 871(h) or 881(c) of the Code. Such Lender, as of such
date, also confirms that with respect to its Loans (or interest or other
payments relating thereto) regarding which the U.K. Tax Act could reasonably be
expected to result in withholding tax requirements under the U.K. Tax Act (but
for the applicable Lender qualifying for the immediately following exemptions)
it is either (x) a bank as defined in Section 840A of the U.K. Tax Act, which,
for the purposes of Sections 349 and 212 of the U.K. Tax Act, is within the
charge to United Kingdom corporation tax as regards, and is beneficially
entitled to, any interest received by it under this Agreement, except that, if
that Section is repealed, modified, extended or re-enacted, the Administrative
Agent may at any time and from time to time (acting reasonably) amend this
definition to reflect such repeal, modification, extension or enactment by
giving notice of the amended definition to the Company, or (y) a person carrying
on a bona fide banking business who is resident (as such term is defined in the
appropriate U.K. Double Taxation Treaty) in a country with which the United
Kingdom has an appropriate U.K. Double Taxation Treaty giving residents of that
country full exemption from United Kingdom taxation on interest and does not
carry on business in the United Kingdom through a permanent establishment with
which the indebtedness under this Agreement in respect of which the interest is
paid is effectively connected. Each Lender that is not a corporation organized
under the laws of the United States of America or any state thereof shall
provide to the Company and the Administrative Agent on or before the date of any
payment by any Borrower hereunder, or on the date of its delivery of the
Assignment and Acceptance pursuant to which it becomes a Lender, and at such
other times as required by United States law or as the Company or the
Administrative Agent shall reasonably request, two accurate and complete
original signed copies of either (A) Internal Revenue Service Form 4224 (or
successor form) certifying that all payments to be made to it hereunder will be
effectively connected to a United States trade or business (the "Form 4224
Certification"), or (B) Internal Revenue Service Form 1001 (or successor form)
certifying that it is entitled to the benefit of a provision of a U.S. Double
Taxation Treaty which completely exempts from United States withholding tax all
payments of interest to be made to it hereunder (the "Form 1001 Certification").
In addition, each Lender agrees that if it previously filed a Form 4224
Certification it will deliver to the Company and the Administrative Agent a new
Form 4224 Certification prior to the first payment date occurring in each of its
subsequent taxable years (or such other date as may be required in compliance
with applicable law); and if it previously filed a Form 1001 Certification, it
will deliver to the Company and the Administrative Agent a new certification
prior to the first payment date falling in the third year following the previous
filing of such certification (or such other date as may be required in
compliance with applicable law).
Each Lender also agrees to deliver to the Company and the Administrative Agent
such other or supplemental forms as may at any time be required in order to
confirm or maintain in effect its entitlement to exemption from United States or
United Kingdom withholding tax on any payments hereunder, provided that the
circumstances of the Lender at the relevant time and applicable laws permit it
to do so. Except as provided immediately below, if a Lender is organized under
the laws of a jurisdiction outside the United States of America, unless the
Company and the Administrative Agent have received a Form 1001 Certification or
Form 4224 Certification, reasonably satisfactory to them indicating that all
payments of interest, to be made to such Lender hereunder are not subject to
United States withholding tax, the Company shall be entitled to withhold taxes
from such payments at the applicable statutory rate, provided that such
withholding shall not increase the amount of payments for the account of such
Lender to be made by the Company pursuant to Subsection 2.14(a). If a Lender
determines, as a result of any change in either (i) applicable law, regulation
or treaty, or in any official application thereof or (ii) its circumstances,
that it is unable to submit any form or certificate that it is obligated to
submit pursuant to this Section, or that it is required to withdraw or cancel
any such form or certificate previously submitted, it shall promptly notify the
Company and the Administrative Agent of such fact and the Company shall be
entitled to withhold taxes from such payments at the applicable statutory rate,
it being understood that such withholding shall increase the amount of payments
for the account of such Lender to be made by the Company pursuant to Section
2.14(a). Each Lender agrees to indemnify and hold the Administrative Agent
harmless from any United States or United Kingdom taxes, penalties, interest and
other expenses, costs and losses incurred or payable by the Administrative Agent
(i) as a result of such Lender's failure to submit any form or certificate that
it is required to provide pursuant to this Section or (ii) as a result of the
Administrative Agent's reliance on any such form or certificate which such
Lender has provided to it pursuant to this Section. Each Person that shall
become a Lender or a Participant pursuant to Section 10.04 shall, upon the
effectiveness of the related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this Section, provided that
in the case of a Participant the obligations of such Participant shall be the
same as if it were a Lender, except that such Participant shall furnish all such
required forms, certifications and statements to the Lender from which the
related participation shall have been purchased and such Lender shall provide
such forms to the Company and the Administrative Agent.
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) Each Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or of amounts payable under
Section 2.12, 2.13 or 2.14, or otherwise) prior to 12:00 noon, New York City or
London time, as applicable, on the date when due, in immediately available
funds, without set-off or counterclaim. Any amounts received after such time on
any date may, in the discretion of the Administrative Agent, be deemed to have
been received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the applicable Agency
Account for the account of the Lenders, except that payments pursuant to
Sections 2.12, 2.13, or 2.14 and 10.03 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in Dollars, except that with respect to any Loan that is
denominated in an Alternate Currency, all payments of principal and interest
with respect to such Loan shall be made in the Alternate Currency in which such
Loan is denominated; provided, however, that with respect to any Loan
denominated in a National Currency, all payments with respect thereto may be
made in Euros in accordance with Section 1.05.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied towards
payment of interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due to
such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by a Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to a Borrower or any Subsidiary or Affiliate thereof (as
to which the provisions of this paragraph shall apply). Each Borrower consents
to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from a Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that such Borrower
will not make such payment, the Administrative Agent may assume that the
applicable Borrower has made such payment on such date in accordance herewith
and may, in reliance upon such assumption, distribute to the Lenders the amount
due. In such event, if the applicable Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(b) or 2.15(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
SECTION 2.16. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.12, or if any Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.14, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or Affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.12 or 2.14, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. Each Borrower
hereby agrees to pay all reasonable costs and expenses incurred by such Lender
in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.12, or
if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.14,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Company
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Company (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.12 or payments required to be made pursuant to Section 2.14, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Company to require such assignment and delegation cease to apply.
SECTION 2.17. Foreign Available Amount Designation. Once per Fiscal
Quarter, the Company, may, at its sole option, designate or redesignate the
amount of the Foreign Available Amount by delivering a written notice to the
Administrative Agent not less than five Business Days prior to the date the
Company proposes that the newly designated Foreign Available Amount would become
effective; provided, that no such designation of the Foreign Available Amount
may occur if a Default exists or if the sum of the Revolving Credit Exposures,
with respect to the Foreign Subsidiary Borrowers or the Company and the Domestic
Subsidiary Borrowers, as applicable, would, after giving effect to such
designation and any concurrent payments on such Loans, exceed the Foreign
Available Amount or the Domestic Available Amount, respectively.
SECTION 2.18. Extension of Stated Revolving Loan Maturity Date. (a) No
earlier than 90 days and no later than 60 days prior to the then applicable
Revolving Loan Maturity Date, the Company may, subject to satisfaction of the
conditions precedent for a Borrowing other than a Refunding Borrowing set forth
in Section 4.02, request in writing delivered to the Administrative Agent an
extension of the Revolving Loan Maturity Date for a period equal to 364 days
from the then applicable Revolving Loan Maturity Date (the "Extension Request").
The Revolving Loan Maturity Date shall be extended as provided in this Section
2.18 if at least the Required Lenders consent to such extension. No earlier than
30 days and no later than 25 days prior to the then applicable Revolving Loan
Maturity Date, each Lender shall notify the Company and the Administrative Agent
of its election to extend or not extend the Revolving Loan Maturity Date as
requested in such Extension Request. If the Required Lenders shall approve in
writing the extension of the Revolving Loan Maturity Date requested in such
Extension Request, the Revolving Loan Maturity Date shall automatically and
without any further action by any Person be extended for the period specified in
such Extension Request; provided that (i) each extension pursuant to this
Section 2.18 shall be for a maximum of 364 days, and (ii) the Commitment of any
Lender that does not consent in writing within 30 days after receiving from the
Administrative Agent the applicable Extension Request (a "Non-Extending Lender")
shall, unless earlier terminated in accordance with this Agreement, expire on
the Revolving Loan Maturity Date in effect on the date of such Extension Request
(such Revolving Loan Maturity Date, if any, referred to as the "Commitment
Expiration Date" with respect to such Non-Extending Lender). If, within 30 days
after receiving from the Administrative Agent the applicable Extension Request,
the Required Lenders shall not approve in writing the extension of the Revolving
Loan Maturity Date requested in an Extension Request, the Revolving Loan
Maturity Date shall not be extended pursuant to such Extension Request. The
Administrative Agent shall promptly notify (y) the Lenders and the Company of
any extension of the Revolving Loan Maturity Date pursuant to this Section 2.18
and (z) the Company and the Lenders of any Lender which becomes a Non-Extending
Lender.
(b) Loans owing to any Non-Extending Lender on the Commitment
Expiration Date with respect to such Lender shall be repaid in full on or before
the Commitment Expiration Date.
(c) Each Borrower shall have the right, so long as no Event of
Default has occurred and is then continuing, upon giving notice to the
Administrative Agent and the Non-Extending Lenders, to prepay in full the Loans
made to it owing to the Non-Extending Lenders, together with accrued interest
thereon, any amounts payable pursuant to Sections 2.10, 2.12, 2.13, 2.14 and
10.03(b) and any accrued and unpaid facility fee or other amounts payable to the
Non-Extending Lenders hereunder and/or, upon giving not less than three Business
Days' notice to the Non-Extending Lenders and the Administrative Agent, to
cancel the whole or part of the Commitments of the Non-Extending Lenders.
(d) Notwithstanding the foregoing, if any Lender becomes a
Non-Extending Lender, the Company may, at its own expense and in its sole
discretion and prior to the then stated Revolving Loan Maturity Date, require
such Lender to transfer or assign, in whole or in part, without recourse (in
accordance with Section 10.04), all or part of its interests, rights and
obligations under this Agreement to an assignee permitted under Section 10.04
(provided that the Company with the full cooperation of such Lender, can
identify such an assignee that is ready, willing and able to be an assignee with
respect thereto) which shall assume such assigned obligations (which assignee
may be another Lender, if such assignee Lender accepts such assignment);
provided that (i) the assignee or the Company, as the case may be, shall have
paid to such Lender in immediately available funds the principal of and interest
accrued to the date of such payment on the Loans made by it hereunder and all
other amounts owed to it hereunder, including, without limitation, any amounts
owing pursuant to Section 10.03(b) and any amounts that would be owing under
said Section if such Loans were prepaid on the date of such assignment, and (ii)
such assignment does not conflict with any applicable law of any Governmental
Authority. Any assignee which becomes a Lender as a result of such an assignment
made pursuant to this paragraph (d) shall be deemed to have consented to the
applicable Extension Request and, therefore, shall not be a Non-Extending
Lender.
SECTION 2.19. Addition or Termination of Subsidiary Borrowers. So long
as no Default exists, the Company may from time to time provide written notice
to the Administrative Agent, and the Administrative Agent shall immediately
thereafter provide a copy of such notice along with a copy of all documentation
relating thereto received from the Company to each of the Lenders:
(a) Designating any of its wholly owned, directly or
indirectly, Subsidiaries organized under the laws of the United States of
America, any State thereof or the District of Columbia, as an additional
Domestic Subsidiary Borrower and shall execute and deliver, and cause each such
newly designated Domestic Subsidiary Borrower to execute and deliver, to the
Administrative Agent a Joinder Agreement (together with all documents required
to be attached thereto) whereupon such Subsidiary shall thereafter qualify as a
Domestic Subsidiary Borrower.
(b) Designating any of its wholly owned, directly or
indirectly, Subsidiaries organized under the laws of the United Kingdom or any
Participating Member State and located in the United Kingdom or any
Participating Member State, as an additional Foreign Subsidiary Borrower and
shall execute and deliver, and cause each such newly designated Foreign
Subsidiary Borrower to execute and deliver, to the Administrative Agent a
Joinder Agreement (together with all documents required to be attached thereto)
whereupon such Subsidiary shall thereafter qualify as a Foreign Subsidiary
Borrower; provided, however, that for purposes of this Section 2.19(b), any
Subsidiary of the Company that is required by the applicable law of its
jurisdiction of organization or formation to be owned by a citizen of such
jurisdiction or Person organized or formed under the laws of such jurisdiction
in an amount equal to or less than one percent of the capital stock or equity
interest of such Subsidiary and such one percent or lesser amount of ownership
does not provide for voting or distribution rights in excess of such ownership
percentage or otherwise give a Controlling interest to such Person, then, for
purposes of this Section 2.19(b), such Subsidiary shall be deemed to be wholly
owned by the Company.
(c) With respect to any Subsidiary Borrower, that the Company
is terminating such Subsidiary's designation as a Domestic Subsidiary Borrower
or a Foreign Subsidiary Borrower, as the case may be, whereupon if all
obligations of such Subsidiary Borrower to the Administrative Agent and the
Lenders under or in connection with this Agreement have been indefeasibly paid
in full pursuant to the terms hereof, such Subsidiary shall thereafter no longer
be a Subsidiary Borrower hereunder.
SECTION 2.20. Change in Control. If a Change in Control shall occur (i)
the Company will, within ten days after the occurrence thereof, give each Lender
notice thereof and shall describe in reasonable detail the facts and
circumstances giving rise thereto and (ii) each Lender may, at any time at its
option by notice to the Borrowers and the Administrative Agent given not later
than 60 days after such Change in Control, (x) terminate its Commitment, which
Commitment shall thereupon be terminated, and (y) by three Business Days notice
to the Borrowers and the Administrative Agent declare the Loans held by it
(together with accrued interest thereon) and any other amounts payable hereunder
for its account to be, and such Loans and such other amounts shall thereupon
become, immediately due and payable without presentment, demand, protest, or
other notice of any kind, all of which are hereby waived by the Borrowers.
SECTION 2.21. Conversion to Term Loans. At the option of the Company
and subject to the satisfaction of the conditions precedent for a Borrowing
other than a Refunding Borrowing set forth in Section 4.02, upon written notice
delivered to the Administrative Agent no earlier than 60 days and no later than
30 days prior to the then applicable Revolving Loan Maturity Date, the aggregate
principal amount of any Revolving Loans remaining outstanding at the close of
the Administrative Agent's business on the then applicable Revolving Loan
Maturity Date, shall automatically convert to Term Loans with a maturity of two
years. Any portion of each Lender's Commitment not utilized on or before the
then applicable Revolving Loan Maturity Date shall be permanently cancelled. Any
Term Loans that are prepaid may not be reborrowed.
ARTICLE III
Representations and Warranties
To induce the Lenders to enter into this Agreement and to make the
Loans, each Borrower represents and warrants (such representations and
warranties to survive any investigation and the making of the Loans) to the
Lenders and the Administrative Agent that:
SECTION 3.01. Corporate Existence and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware. Each Material Subsidiary organized under the laws
of the United States of America, any State thereof, or the District of Columbia,
is a corporation duly incorporated, validly existing and in good standing (or,
if such Subsidiary is a limited liability company, is a limited liability
company duly formed, validly existing and in good standing) under the laws of
its jurisdiction of incorporation, organization or formation. Each Material
Subsidiary organized under the laws of a jurisdiction other than United States
of America, any State thereof, or the District of Columbia is a company duly
formed and validly existing under the laws of its jurisdiction of formation. The
Company and each Material Subsidiary has all requisite corporate or limited
liability company power and all material governmental licenses, permits,
authorizations, qualifications, consents and approvals required to carry on its
business as now conducted which, if not obtained, could reasonably be expected
to have a Material Adverse Effect.
SECTION 3.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance of this Agreement by the
Company and each Subsidiary Borrower are within each such Borrower's corporate
or limited liability company powers, have been duly authorized by all necessary
corporate or limited liability company action, require no approval of or filing
with any governmental body, agency or official or any other Person, do not
conflict with, contravene or constitute a default under any provision of
applicable law or regulation or of the certificate of incorporation, by-laws,
articles of association or memorandum of association of such Borrower or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
such Borrower unless such conflict could not reasonably be expected to have a
Material Adverse Effect, and will not result in the creation or imposition of
any mortgage, security interest or other lien or encumbrance on any asset or
revenues of such Borrower or any of its Subsidiaries.
SECTION 3.03. Binding Effect. This Agreement constitutes a legal, valid
and binding agreement of each of the Company and each Subsidiary Borrower
enforceable against each Borrower in accordance with its terms.
SECTION 3.04. Financial Information.
(a) The consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of December 31, 1997, and the related consolidated statements of
income, retained earnings and cash flows for the year then ended, reported on by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P. and set forth in the Company's 1997 Annual Report, a copy
of which has been delivered to each of the Lenders, fairly present, in
conformity with GAAP, 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 year.
(b) the unaudited consolidated statement of financial condition of the
Company and its Consolidated Subsidiaries at September 30, 1998, and the related
consolidated statements of income and retained earnings and cash flows of the
Company and its Consolidated Subsidiaries for the nine months ending September
30, 1998, heretofore furnished to the Lenders present fairly, in conformity with
GAAP, the consolidated financial condition of the Company at the date of said
statements for said periods, subject to year-end audit adjustments in the case
of such unaudited statements.
(c) At the Effective Date, there has been no material adverse change in
the business, assets, operations, prospects or condition, financial or
otherwise, of the Company and its Consolidated Subsidiaries, taken as a whole
since September 30, 1998, including with regard thereto the selected pro forma
financial information dated as of and for the nine months ended September 30,
1998, set forth in the Company's S-4 filed with the SEC, and effective as of
January 27, 1999.
SECTION 3.05. Litigation. Except as may have been disclosed in writing
to the Lenders prior to the signing hereof, there is no material action, suit or
proceeding pending, or to the knowledge of the Company threatened, against or
affecting the Company or any Subsidiary before any court or arbitrator or any
governmental body, agency or official which could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.06. Compliance with ERISA.
(a) Neither the Company nor any ERISA Affiliate has failed to comply in
any material respect with the applicable provisions of ERISA and the Code and
the regulations promulgated thereunder (including, without limitation, sections
4068, 4069 and 4212 of ERISA), where such failure could reasonably be expected
to result in a Material Adverse Effect.
(b) Other than premiums to the PBGC due in the normal course, no
liability to the PBGC (with respect to which the Company or any ERISA Affiliate
is delinquent) has been incurred and remains unsatisfied or is expected by the
Company to be incurred with respect to any Plan by the Company or any ERISA
Affiliate which could reasonably be expected to result in a Material Adverse
Effect.
(c) Neither the Company nor any ERISA Affiliate is obligated to
contribute to, or has incurred a withdrawal liability with respect to, any
Multiemployer Plan in an amount that would be materially adverse to the Company
and its Subsidiaries taken as a whole.
(d) Full payment has been made of all amounts that the Company or any
ERISA Affiliate is required under the terms of each Plan to have paid as
contributions to such Plan as of the last day of the most recent fiscal year of
such Plan ended prior to the date hereof (or will be made within the period
described in Section 404 of the Code) and no accumulated funding deficiency (as
defined in Section 302 of ERISA and Section 412 of the Code), whether or not
waived, exists with respect to any Plan. Each Plan satisfies the minimum funding
standard of Section 412 of the Code.
(e) The amount of Benefit Liabilities under each Plan, determined as of
the end of the Company's most recently ended fiscal year (on the basis of
assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA) did
not exceed the current value of the assets of such Plans determined as of such
date in an amount that, individually or in the aggregate with such amount for
all Plans, exceeds $25,000,000.
SECTION 3.07. Environmental Matters. The Company and each Subsidiary,
and to the best of the Company's knowledge, any former subsidiary and any
predecessor in interest of the Company or of any Subsidiary, and with respect to
all of the Property of the Company and its Subsidiaries, and each of the plants,
sites and facilities presently or formerly owned, operated, controlled, or
leased by the Company or any of its Subsidiaries, has complied with all
applicable Environmental Laws during the period such Subsidiary, plant, site or
facility was owned, operated, controlled or leased by the Company or any of its
Subsidiaries, except in any such case, where such failure to so comply could not
reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any of its Subsidiaries has received any notice of, or has knowledge of, any
actual or threatened claim, legal proceeding or investigation regarding the
Company or any of its Subsidiaries, or any of the respective plants, sites or
facilities currently or formerly owned, operated, leased or controlled by any of
them, related to Environmental Laws which alone or together with all other such
matters known to the Company could reasonably be expected to have a Material
Adverse Effect.
SECTION 3.08. Taxes. The Company and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Company or any
Subsidiary, except such taxes or assessments, if any, as are being contested in
good faith by appropriate proceedings. The charges, accruals and reserves on the
books of the Company and its Subsidiaries in respect of taxes are, in the
opinion of the Company, adequate.
SECTION 3.09. Investment Company Act. None of the Borrowers is an
investment company within the meaning of the Investment Company Act of 1940, as
amended, or directly or indirectly controlled by or acting on behalf of any
Person which is an investment company, within the meaning of such Act.
SECTION 3.10. Public Utility Holding Company Act. None of the Borrowers
is a "public utility company, or an "affiliate," or a "subsidiary company of a
"public utility company," or a "holding company," or an "affiliate" or a
"subsidiary company" of a "holding company" or of a "subsidiary company" of a
"holding company," as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
SECTION 3.11. Use of Proceeds. No portion of the Loans will be used,
directly or indirectly, (a) to purchase or carry any Margin Stock, (b) to repay
or otherwise refinance indebtedness of any Borrower incurred to purchase or
carry any Margin Stock, or (c) to extend credit for the purpose of purchasing or
carrying any Margin Stock.
SECTION 3.12. Disclosure. The Company has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Material Subsidiaries is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. None of the other reports, financial statements,
certificates or other information furnished by or on behalf of the Company or
its Material Subsidiaries to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, each Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.13. Year 2000 Compliance. The Company believes that any
reprogramming required to permit the proper functioning, in and following the
year 2000, of (a) the Company's, or any Material Subsidiary's, computer systems
and (b) equipment containing embedded microchips (including systems and
equipment supplied by others or with which the Company's, or any Material
Subsidiary's, systems interface) and the testing of all such systems and
equipment, as so reprogrammed, to the extent necessary to prevent any
significant disruptions to the business and operations of the Company and its
Subsidiaries on a consolidated basis, will be completed by September 30, 1999.
The cost to the Company and its Material Subsidiaries of such reprogramming and
testing and of the reasonably foreseeable consequences of year 2000 to the
Company (including, without limitation, reprogramming errors and the failure of
others' systems or equipment) will not result in a Default or other event or
circumstance that could reasonably be expected to have a Material Adverse
Effect.
SECTION 3.14. Material Subsidiaries. As of the Effective Date, the
Subsidiaries of the Company that qualify as Material Subsidiaries under this
Agreement and that are not Subsidiary Borrowers are those Subsidiaries listed on
Schedule 3.14 attached hereto.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this Agreement
signed on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of
this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., General Counsel of the Company,
substantially in the form of Exhibit B-1, and covering such other matters
relating to the Borrowers, this Agreement or the Transactions as the Required
Lenders shall reasonably request. Each Borrower hereby requests such counsel to
deliver such opinion.
(c) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Borrowers,
substantially in the form of Exhibit B-2, and covering such other matters
relating to the Borrowers, this Agreement or the Transactions as the Required
Lenders shall reasonably request. Each Borrower hereby requests such counsel to
deliver such opinion.
(d) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing of
each Borrower organized under the laws of the United States of America, any
State thereof, or the District of Columbia and relating to the organization and
existence of each Borrower organized under the laws of a jurisdiction other than
the United States, any State thereof, or the District of Columbia, the
authorization of the Transactions, and any other legal matters relating to such
Borrower, this Agreement or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate
from each Borrower, dated the Effective Date and signed by the President, a Vice
President, a Financial Officer, or a director of such Borrower, confirming
compliance with the conditions set forth in paragraphs (a), (b), (c), and (d) of
Section 4.02.
(f) The Administrative Agent shall have received for its own
account, or for the account of the Lenders, as the case may be, all fees, costs
and expenses due and payable pursuant to the Fee Letter and Section 10.03.
(g) All conditions precedent related to the Company's merger
with Oryx Energy Company as detailed in the S-4 filed November 17, 1998 with the
SEC shall have been fulfilled.
(h) Each of the Oryx Facility and the ABN Facility A shall
have been terminated and all respective obligations thereunder have been
satisfied, subject only to funding of the initial Loans under this Agreement.
The Administrative Agent shall notify each Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.02) at or prior to 5:00 p.m., New York City time, on
March 31, 1999 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to
make, convert or continue a Loan on the occasion of any Borrowing is subject to
the satisfaction of the following conditions:
(a) On the occasion of any Borrowing other than a Refunding
Borrowing, each of the representations and warranties of the Borrowers set forth
in this Agreement shall be true and correct on and as of the date of such
Borrowing. On the occasion of any Refunding Borrowing, each of the
representations and warranties of the Borrowers set forth in this Agreement,
other than the representations and warranties set forth in Sections 3.04(c),
3.05 and 3.07, shall be true and correct on and as of the date of such
Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
(c) At the time of and immediately after giving effect to such
Borrowing, the Consolidated Tangible Net Worth shall be equal to or greater than
$1,000,000,000.
(d) At the time of and immediately after giving effect to such
Borrowing, at any time when the Applicable Rate is determined by reference to
Level Three, Four, Five or Six as provided in the Pricing Schedule, the Debt
Leverage Ratio is equal to or less than 3.5:1.00.
(e) The Administrative Agent shall have received a Joinder
Agreement (together with all documents required to be attached thereto) executed
and delivered by the Company and each Subsidiary Borrower that is designated as
such by the Company subsequent to the Effective Date, and the Administrative
Agent shall have delivered a copy of such Joinder Agreement (together with a
copy of all documents required to be attached thereto) to each of the Lenders.
Each Borrowing shall be deemed to constitute a representation and warranty by
each Borrower on the date thereof as to the matters specified in paragraphs (a),
(b), (c) and (d) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, each Borrower covenants and agrees with the Lenders that it
will:
SECTION 5.01. Information. Deliver, or cause to be delivered, to
the Administrative Agent and each Lender:
(a) to the extent not already delivered pursuant to another clause of
this Section 5.01, as soon as available and in any event within 120 days after
the end of each fiscal year of the Company, (i) a 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, retained earnings and cash
flows for such fiscal year, setting in each case in comparative form the figures
from the previous fiscal year, all audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P. or other
independent public accountants of nationally recognized standing, and (ii) an
audited consolidated balance sheet of each Subsidiary Borrower and its
Consolidated Subsidiaries as of the end of such fiscal year and the related
consolidated profit and loss account and statements of retained earnings of such
fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, accompanied by (A) the report thereon of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
L.L.P. or other independent public accounts of internationally recognized
standing, or (B) if such financial statements are not otherwise reported on by
independent public accountants, a certificate of the Financial Officer of such
Subsidiary Borrower as to fairness of presentation, GAAP and consistency;
(b) to the extent not already delivered pursuant to another clause of
this Section 5.01, (i) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each fiscal year of the
Company, (A) a consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such quarter, (B) the related consolidated
statements of income for such quarter and for the portion of the Company's
fiscal year ended at the end of such quarter and (C) the related consolidated
statement of cash flows for the portion of the Company's fiscal year ended at
the end of 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, GAAP and consistency by the
Financial Officer of the Company; and (ii) as soon as available and in any event
within 90 days after the end of each of the first three quarters of each fiscal
year of each Subsidiary Borrower, (X) a consolidated balance sheet of such
Subsidiary Borrower and its Subsidiaries as of the end of such quarter, and (Y)
the related consolidated profit and loss account of such Subsidiary Borrower's
fiscal year ended at the end of such quarter, setting forth in each case in
comparative form the figures for the corresponding quarter and the corresponding
portion of such Subsidiary Borrower's previous fiscal year, all certified
(subject to normal year-end adjustments) as to fairness of presentation, GAAP
and consistency by an officer or director of such Subsidiary Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above or clause (g) below, a
certificate of the Financial Officer of the Company (i) stating whether to the
knowledge of such officer, there exists on the date of such certificate any
Default and, if any Default then exists, setting forth the details thereof and
the action which the Company or Subsidiary Borrower, as the case may be, is
taking or proposes to take with respect thereto and (ii) setting forth in
reasonable detail the computations necessary to determine the Consolidated
Tangible Net Worth and the Debt Leverage Ratio as at the end of the respective
fiscal quarter or fiscal year.
(d) simultaneously with the delivery of each set of audited year-end
financial statements referred to in clauses (a) or (g), a statement
substantially in the form attached hereto as Exhibit E of the firm of
independent public accountants which reported on such statements stating whether
anything has come to their attention to cause them to believe that there existed
on the date of such statements any Default;
(e) forthwith upon any executive officer (meaning any member of the
management committee, a Financial Officer or the general counsel) of the Company
or any officer or director of a Subsidiary Borrower obtaining knowledge of the
occurrence of any Default, a certificate of a Financial Officer of the Company
setting forth the details thereof and the action which the Company or such
Subsidiary Borrower, as the case may be, is taking or proposes to take with
respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, (i) a copy of each registration
statement (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) which the Company shall have filed with the SEC, and
a copy of each annual, quarterly or other report (other than the exhibits
thereto) which the Company shall have filed with the SEC and (ii) a copy of any
annual return (other than the exhibits thereto) which any Subsidiary Borrower
shall have filed with the Governmental Authority having jurisdiction over the
registration or issuance of securities in the country of such Subsidiary
Borrower's organization, formation or incorporation;
(h) if and when the Company or any ERISA Affiliate (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; or (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; and
(i) from time to time, upon receiving from the Lenders such assurances
of confidential treatment as the Company may reasonably request, such additional
information regarding the performance of this Agreement or the financial
position or business of any Borrower, as the Administrative Agent, at the
request of any Lender, may reasonably request.
SECTION 5.02. Payment of Taxes. Pay, will cause each of its
Subsidiaries to pay, all material taxes, assessments and other governmental
charges imposed upon it or any of its Properties or assets or in respect of any
of its franchises, business, income or profits before any penalty or interest
accrues thereon, and all material claims (including, without limitation, claims
for labor, services, materials and supplies) for sums which have become due and
payable and which by law have or might become a Lien upon any of its Properties
or assets, non-payment of which could reasonably be expected to have a Material
Adverse Effect, provided that no such tax, assessment, charge or claim need be
paid if being contested in good faith by appropriate proceedings promptly
initiated and diligently conducted so long as no Lien has attached to any
Property of the Company or its Subsidiaries as a result thereof.
SECTION 5.03. Insurance. Maintain, or cause to be maintained, with
financially sound and reputable insurers, insurance with respect to its
Properties and business and the Properties and business of its Subsidiaries
against loss or damage of the kinds customarily insured against by corporation
of established reputation engaged in the same or similar business and similarly
situated, of such types and in such amounts as are customarily carried under
similar circumstances by such other corporations; provided, however, that in
lieu of any such insurance, any Borrower or any such Subsidiary may maintain a
system or systems of self-insurance which are in accord with sound practices of
similarly situated corporations of established reputation maintaining such
systems and with respect to which such Borrower or such Subsidiary shall
maintain adequate insurance reserves in accordance with GAAP and in accordance
with sound actuarial and insurance principles.
SECTION 5.04. Conduct of Business and Maintenance of Existence. Except
as permitted by Section 6.03, at all times preserve and keep in full force and
effect, and cause each Material Subsidiary to preserve and keep in full force
and effect, its existence, and rights and franchises deemed material to the
Properties, business, prospects, profits, condition (financial or otherwise) or
operations of the Company and its Subsidiaries taken as a whole, except that
such rights and franchises and the existence of any Material Subsidiary (other
than those of a Subsidiary Borrower) may be terminated if, in the good faith
judgment of the Board of Directors of the Company, such termination is in the
best interest of the Company and is not disadvantageous to the Lenders.
SECTION 5.05. Compliance with Laws. Comply, and use its best efforts to
cause each of its Subsidiaries to comply, with all applicable laws, rules and
regulations and orders of any Governmental Authority, non-compliance with which
could reasonably be expected to have a Material Adverse Effect.
SECTION 5.06. Compliance with Environmental Laws. Comply, and use its
best efforts to cause each of its Subsidiaries and each of its Affiliates that
are controlled by it or its Subsidiaries to comply, in a timely fashion, with
the provisions of all Environmental Laws, failure with which to comply could
reasonably be expected to have a Material Adverse Effect. Each Borrower agrees
to defend, indemnify and hold the Administrative Agent and each Lender, and
their respective directors, officers, and employees ("Environmental
Indemnitees") harmless from any loss, liability, cost, damage, fines, response
costs, investigative and monitoring costs, abatement costs, attorneys' fees,
experts' or consultants' fees, claims or expenses or any other Environmental
Liabilities ("Costs") which any such person may incur or suffer as a result of a
breach by the Company or any Subsidiary Borrower of the preceding covenants, or
as the result of the breach of any representation or warranty contained in
Section 3.07 or as a result of any Environmental Liability, legal proceeding or
investigation regarding the Company or any of its Subsidiaries, or any of their
respective plants, sites or facilities currently or formerly owned, operated,
leased or controlled by any of them, related to Environmental Laws; provided,
however, that with respect to plants, sites, or facilities formerly owned,
operated, leased or controlled by the Company or any of its Subsidiaries, the
indemnification obligations hereunder shall relate only to Costs incurred or
suffered as a result of an Environmental Liability, legal proceeding or
investigation relating to the ownership, operation, lease, or control by the
Company or any of its Subsidiaries of such plants, sites or facilities or in
relation to any plant, site or facility jointly owned, operated, leased or
controlled with any other Person, to Costs incurred by virtue of this Agreement.
In no event shall any Environmental Indemnitee be required to make any
expenditure or bring any cause of action to enforce the Company's obligations
and liability under and pursuant to this Section. The Company and each
Subsidiary Borrower shall indemnify the respective Environmental Indemnitee
regardless of whether the act, omission, facts, circumstances or conditions
giving rise to such indemnification were caused in whole or in part by the
respective Environmental Indemnitee's simple (but not gross) negligence. The
indemnifications set out in this Section shall survive the termination of this
Agreement and shall continue to be the personal liability and obligation of the
Company and each Subsidiary Borrower, binding upon them. The indemnifications
set forth in this Section are also subject to the provisions of Section 10.03(b)
of this Agreement, except to the extent such provisions conflict with this
Section in which case the provisions of this Section shall control.
SECTION 5.07. Use of Proceeds. Use the proceeds of the Loans made under
this Agreement for working capital and general corporate purposes, including
non-contested acquisitions, refinancing of obligations under the ABN Facility A
and the Oryx Facility, and commercial paper back-up in the United States of
America and the European Union. No portion of the Loans will be used, directly
or indirectly, (a) to purchase or carry any Margin Stock, (b) to repay or
otherwise refinance indebtedness of any Borrower incurred to purchase or carry
any Margin Stock, or (c) to extend credit for the purpose of purchasing or
carrying any Margin Stock.
SECTION 5.08. Notice of Changed Credit Rating. Notify the
Administrative Agent promptly on becoming aware of any change or proposed
change in any Rating.
SECTION 5.09. Subsidiary Borrowers. In the case of the Company,
at all times own, directly or indirectly, all outstanding capital stock of the
Subsidiary Borrowers free and clear of all liens or encumbrances.
SECTION 5.10. Year 2000 Compliance. Perform, and, in the case of the
Company, cause each Material Subsidiary to perform, any reprogramming required
to permit the proper functioning, in and following the year 2000, of its
computer systems and equipment containing embedded microchips (including systems
and equipment supplied by others or with which its systems interface) and
perform the testing of all such systems and equipment, as so reprogrammed, to
the extent necessary to prevent any significant disruptions to the business and
operations of the Company and its Subsidiaries on a consolidated basis, which
testing shall be completed by September 30, 1999.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full:
SECTION 6.01. Compliance with ERISA. The Company will not, and will not
permit any of its Subsidiaries to, (i) engage in any transaction in connection
with which the Company or any of its Subsidiaries could be subject to either a
civil penalty assessed pursuant to Section 502(i) of ERISA, a tax imposed by
Section 4975 of the Code, or a lien pursuant to Section 412(n) of the Code, (ii)
terminate any Plan in a manner, or take any other action with respect to any
such Plan (including, without limitation, a substantial cessation of operations
within the meaning of Section 4068(f) of ERISA), which could result in any
liability of the Company or any of its Subsidiaries to the PBGC or to a trustee
appointed pursuant to Section 4042(b) or (c) of ERISA, or incur any liability to
the PBGC on account of a termination of a Plan under Section 4064 of ERISA,
(iii) fail to make full payment when due of all amounts which, under the
provisions of any Plan or Section 412(m) of the Code, the Company or any of its
Subsidiaries is required to pay as contributions thereto, (iv) incur any
complete or partial withdrawal liability under Title IV of ERISA with respect to
any Multiemployer Plan, or (v) permit to exist any accumulated funding
deficiency, whether or not waived, with respect to any Plan, if, in the
aggregate, such penalty or tax or such liability, or the failure to make such
payment, or the existence of such deficiency, as the case may be, exceeds
$25,000,000.
SECTION 6.02. Limitation on Secured Debt. Neither the Company nor a
Subsidiary Borrower will, and the Company will not, permit any Consolidated
Subsidiary to create, incur, assume or suffer to exist, any Indebtedness secured
by a Lien on any Restricted Property or any Indebtedness of the Company or any
Subsidiary, without effectively providing that the Loans and any other
Indebtedness evidenced by this Agreement shall be secured equally and ratably
with (or prior to) such secured Indebtedness, so long as such secured
Indebtedness shall be so secured, unless, after giving effect thereto, the
aggregate principal amount of all such secured Indebtedness (not including
secured Indebtedness permitted to be secured under clauses (a) to (j) below)
plus the aggregate "value" (as defined below) of all "sale and leaseback
transaction" (as defined below, but not including any sale or leaseback
transaction the proceeds of which have been or will be applied to funded
Indebtedness of the Company or its Subsidiaries within 120 days from the time of
such transaction) would not exceed five percent (5%) of Stockholders' Equity of
the Company; provided, however, that this Section 6.02 shall not apply to, and
there shall be excluded from secured Indebtedness in any computation for
purposes of this Section 6.02, any Indebtedness secured by:
(a) Liens existing on the date of this Agreement;
(b) any Lien existing on any asset of any corporation at the
time such corporation becomes a Consolidated Subsidiary and not created in
contemplation of such event and which does not extend to any other assets of the
Company or any Consolidated Subsidiary;
(c) any Lien on any asset securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of acquiring,
constructing or improving such asset, provided that such Lien attaches to such
asset concurrently with or within 24 months after the acquisition or completion
of construction or improvement thereof, and provided further that the
Indebtedness secured by such Lien shall not exceed the cost of acquiring,
constructing or improving such asset;
(d) any Lien on any asset of any corporation existing at the
time such corporation is merged or consolidated with or into the Company or a
Consolidated Subsidiary and not created in contemplation of such event and which
does not extend to any other assets of the Company or any Consolidated
Subsidiary;
(e) any Lien existing on any asset prior to the acquisition
thereof by the Company or a Consolidated Subsidiary and not created in
contemplation of such acquisition;
(f) any Lien arising pursuant to any order of attachment,
distraint or similar legal process arising in connection with court proceedings
so long as the execution or other enforcement thereof is effectively stayed and
the claims secured thereby are being contested in good faith by appropriate
proceedings;
(g) Liens to secure indebtedness of the pollution control or
industrial revenue bond type and Liens in favor of the United States or any
State thereof, or any department, agency, instrumentality, or political
subdivision of any such jurisdiction, 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;
(h) any Lien (including Liens in respect of production
payments) to secure the payment of all or any part of the cost of exploration,
drilling, mining, or development of property which had prior to September 30,
1998, produced no material volumes of hydrocarbons, minerals, timber or other
products or by-products produced or extracted from such property, provided that
the Indebtedness secured by such Lien shall not exceed the cost of exploring,
drilling, mining or development such property; and provided further that such
Lien shall not extend to any property other than the property being explored,
drilled, mined or developed;
(i) Liens securing Indebtedness incurred by the Company or any
of its Subsidiaries to pay all or any part of the cost of exploration, drilling
or development any North Sea properties within the territorial waters of the
United Kingdom, provided, that the Indebtedness secured by such Liens shall not
exceed the cost of such exploration, drilling, or development; and provided
further that such Lien shall not extend to any property other than the property
being explored, drilled or developed; and
(j) any Lien arising out of the refinancing, extension,
renewal or refunding of any Indebtedness secured by any Lien permitted by any of
the foregoing clauses of this section, provided that the amount of such
Indebtedness is not increased and is not secured by any additional assets;
For purposes of this Section 6.02, the term "sale and leaseback
transaction" means any arrangement with any bank, insurance company or other
lender or investor or to which any such lender or investor is a party, providing
for the leasing by the Company or any of its Consolidated Subsidiaries for a
period, including renewals, in excess of three years on any Restricted Property
owned or leased by the Company or any of its Consolidated Subsidiaries which has
been sold or transferred, more than 120 days after the completion of
construction and commencement of full operation thereof, by the Company or any
of its Consolidated Subsidiaries to such lender or investor or to any Person to
whom funds have been or are to be advanced by such lender or investor on the
security of such Restricted Property. For purposes of this Section 6.02, the
term "value" means, with respect to a sale and leaseback transaction, as of any
particular time, an amount equal to the greater of (i) the net proceeds of sale
of the Restricted Property leased pursuant to such sale and leaseback
transaction, and (ii) the fair value of such Restricted Property at the time of
entering into such sale and leaseback transaction as determined by the Board of
Directors of the Company, in each case multiplied by a fraction of which the
numerator is the number of full years remaining in the term of the lease
(without regard to renewal options) and the denominator is the number of full
years of the full term of the lease (without regard to renewal options).
SECTION 6.03. Consolidations, Mergers and Sales of Assets.
(a) Neither the Company nor any Subsidiary Borrower will be a party to
any merger or consolidation or sell, lease or otherwise transfer all or
substantially all of its Property; provided that the Company may merge or
consolidate with another corporation and may sell, lease or otherwise transfer
all or substantially all of its Property as an entirety to another corporation
if (i) the surviving or acquiring corporation (if other than the Company) (A) is
organized under the laws of the United States or a jurisdiction thereof and (B)
expressly assumes by writing reasonably satisfactory to the Required Lenders the
covenants and obligations in this Agreement, and (ii) immediately after giving
effect to such transaction, (x) no condition or event shall exist which
constitutes a Default, (y) the Consolidated Tangible Net Worth shall not be less
than $1,000,000,000, and (z) in the event that any Rating or any expected Rating
(resulting from such merger, consolidation, sale, lease or transfer) for
determining the Applicable Rate is determined by reference to Level Three, Four,
Five or Six as provided in the Pricing Schedule, the Debt Leverage Ratio shall
be equal to or less than 3.5:1.00; and provided, further, that any Subsidiary
Borrower may merge or consolidate with another corporation and may sell, lease
or otherwise transfer all or substantially all of its Property as an entirety to
another corporation if (i) the surviving or acquiring corporation (if other than
another Subsidiary Borrower) (A) is organized under the laws of the country
under whose laws such Subsidiary Borrower is organized and (B) executes and
delivers to the Administrative Agent a Joinder Agreement, (ii) all outstanding
capital stock of the surviving or acquiring corporation is owned by the Company
free and clear of any Lien, and (iii) immediately after giving effect to such
transaction, no condition or event shall exist which constitutes a Default and
the conditions for a Borrowing other than a Refunding Borrowing as set forth in
Section 4.02 (whether or not a Borrowing occurs in connection therewith) are
satisfied.
(b) Concurrently with the public disclosure thereof, the Company shall
give written notice to the Administrative Agent and the Lenders describing in
reasonable detail any proposed transaction described in this Section, the date
on which it is proposed to be consummated and the identity and jurisdiction of
organization of the proposed successor or transferee corporation.
(c) Notwithstanding anything contained in this Section 6.03, the Oryx
Merger is hereby expressly permitted.
SECTION 6.04. Transactions with Affiliates. Neither the Company nor any
Subsidiary Borrower will engage, directly or indirectly, in any transaction
(including, without limitation, the purchase, sale or exchange of assets or the
rendering of any service) with any Affiliate, except in the ordinary course of
and pursuant to the reasonable requirements of the Company's or such Subsidiary
Borrower's or such Affiliate's business and upon fair and reasonable terms that
are substantially the same as those which might be obtained in an arm's length
transaction at the time from Persons which are not such an Affiliate or upon
terms which could not reasonably be expected to have a Material Adverse Effect;
provided, however, that taxes may be allocated among the Company and its
Affiliates in any manner consistent with Section 1552 (or any successor
provision) of the Code, general and administrative expenses may be allocated
among the Company and its Affiliates in any manner consistent with Section 482
(or any successor provision) of the Code, and interest may be charged or
credited to Affiliates in any reasonable manner not inconsistent with the Code.
ARTICLE VII
Guaranty
SECTION 7.01. The Guaranty. In order to induce the Lenders to enter
into this Agreement and to extend credit hereunder and in recognition of the
direct benefits to be received by the Company from the proceeds of the Loans
made to the Subsidiary Borrowers, the Company hereby, unconditionally and
irrevocably guarantees as primary obligor and not merely as surety the full and
prompt payment when due, whether upon maturity, by acceleration or otherwise, of
any and all of the Guaranteed Obligations of the Subsidiary Borrowers to the
Administrative Agent or the Lenders. If any or all of the Guaranteed Obligations
of the Subsidiary Borrowers to the Administrative Agent or the Lenders becomes
due and payable hereunder, the Company unconditionally in the applicable
currency of such Guaranteed Obligation, promises to pay such indebtedness to the
Administrative Agent for the account of each Lender on demand, together with any
and all reasonable expenses which may be incurred by the Administrative Agent or
the Lenders in collecting any of the Guaranteed Obligations. This Guaranty is a
guaranty of payment and not collection. All payments made by Company under this
Guaranty shall be made on the same basis as payments by the Company under
Sections 2.07 and 2.08.
SECTION 7.02. Bankruptcy. Additionally, the Company unconditionally and
irrevocably guarantees the payment of any and all of the Guaranteed Obligations
of the Subsidiary Borrowers to the Administrative Agent and the Lenders whether
or not then due or payable by such Subsidiary Borrowers upon the occurrence in
respect of any Subsidiary Borrower of any of the events specified in Sections
8(h) or 8(i), and unconditionally and irrevocably promises to pay such
Guaranteed Obligations to the Administrative Agent for the account of each
Lender on demand, in the applicable currency of such Guaranteed Obligation.
SECTION 7.03. Nature of Liability. (a) The liability of the Company
hereunder is exclusive and independent of any security for or other guaranty of
the Guaranteed Obligations of the Subsidiary Borrowers whether executed by the
Company, any other guarantor or by any other party, and the liability of the
Company hereunder shall not be affected or impaired by (i) any direction as to
application of payment by any Subsidiary Borrower or by any other party, or (ii)
any other continuing or other guaranty, undertaking or maximum liability of a
guarantor or of any other party as to the Guaranteed Obligations of the
Subsidiary Borrowers, or (iii) any payment on or in reduction of any such other
guaranty or undertaking, or (iv) any dissolution, termination or increase,
decrease or change in personnel by the Subsidiary Borrowers, or (v) any payment
made to the Administrative Agent or the Lenders on the Guaranteed Obligations
which the Administrative Agent or the Lenders repay to the Subsidiary Borrowers
pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and the Company waives any right
to the deferral or modification of its obligations hereunder by reason of any
such proceeding.
(b) If claim is ever made upon the Administrative Agent or any
Lender for repayment or recovery of any amount or amounts received in payment or
on account of any of the Guaranteed Obligations and any of the aforesaid payees
repays all or part of said amount by reason of (i) any judgment, decree or order
of any court or administrative body having jurisdiction over such payee or any
of its property or (ii) any settlement or compromise of any such claim effected
by such payee with any such claimant (including any Subsidiary Borrower), then
and in such event the Company agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon the Company, notwithstanding any
revocation hereof or other instrument evidencing any liability of any Subsidiary
Borrower, and the Company shall be and remain liable to the aforesaid payees
hereunder for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by any such payee.
SECTION 7.04. Independent Obligation. The obligations of the Company
hereunder are independent of the obligations of any other guarantor or the
Subsidiary Borrowers, and a separate action or actions may be brought and
prosecuted against the Company whether or not action is brought against any
other guarantor or the Subsidiary Borrowers and whether or not any other
guarantor or the Subsidiary Borrowers be joined in any such action or actions.
The Company waives, to the fullest extent permitted by law, the benefit of any
statute of limitations affecting its liability hereunder or the enforcement
thereof. Any payment by any Subsidiary Borrower or other circumstance which
operates to toll any statute of limitations as to such Subsidiary Borrower shall
operate to toll the statute of limitations as to the Company. This Guaranty is a
continuing one with respect to the Guaranteed Obligations, and all liabilities
to which it applies or may apply under the terms hereof shall be conclusively
presumed to have been created in reliance hereon.
SECTION 7.05. Authorization. The Company authorizes the Administrative
Agent and the Lenders without notice or demand (except as shall be required by
applicable statute and cannot be waived), and without affecting or impairing its
liability under this Article VII, from time to time to:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate or alter,
any of the Guaranteed Obligations (including any increase or decrease in the
rate of interest thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the Guaranty herein made shall
apply to the Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order any property by whomsoever at any time
pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(c) exercise or refrain from exercising any rights against
the Subsidiary Borrowers or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
guarantors, the Subsidiary Borrowers or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Subsidiary Borrowers to their creditors
other than the Lenders;
(f) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of the Subsidiary Borrowers to the Lenders
regardless of what liability or liabilities of the Subsidiary Borrowers remain
unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement or any of the instruments or agreements referred
to herein, or otherwise amend, modify or supplement this Agreement or any of
such other instruments or agreements; and/or
(h) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable discharge
of the Company from its liabilities under this Guaranty.
SECTION 7.06. Subordination. Any of the Indebtedness of the Subsidiary
Borrowers now or hereafter owing to the Guarantor is hereby subordinated to the
Guaranteed Obligations of the Subsidiary Borrowers owing to the Administrative
Agent and the Lenders; and if the Administrative Agent so requests at a time
when an Event of Default exists, all such Indebtedness of the Subsidiary
Borrowers to the Company shall be collected, enforced and received by the
Company for the benefit of the Lenders and be paid over to the Administrative
Agent on behalf of the Lenders on account of the Guaranteed Obligations of the
Subsidiary Borrowers to the Lenders, but without affecting or impairing in any
manner the liability of the Company under the other provisions of this Guaranty.
SECTION 7.07. Waiver. (a) The Company waives any right (except as shall
be required by applicable statute and cannot be waived) to require the
Administrative Agent or the Lenders to (i) proceed against any Subsidiary
Borrower, any other guarantor or any other party, (ii) proceed against or
exhaust any security held from the Subsidiary Borrowers, any other guarantor or
any other party or (iii) pursue any other remedy in the Administrative Agent's
or the Lenders' power whatsoever. The Company waives any defense based on or
arising out of any defense of the Subsidiary Borrowers, any other guarantor or
any other party, other than payment in full of the Guaranteed Obligations, based
on or arising out of the disability of any Subsidiary Borrower, any other
guarantor or any other party, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Subsidiary Borrowers other than payment in full of the
Guaranteed Obligations. The Administrative Agent and the Lenders may, at their
election, foreclose on any security held by the Administrative Agent or the
Lenders by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy the
Administrative Agent and the Lenders may have against the Subsidiary Borrowers
or any other party, or any security, without affecting or impairing in any way
the liability of the Company hereunder except to the extent the Guaranteed
Obligations have been paid. The Company waives any defense arising out of any
such election by the Administrative Agent and the Lenders, even though such
election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of the Company against any Subsidiary
Borrower or any other party or any security.
(b) The Company waives all presentments, demands for
performance, protests and notices, including without limitation notices of
nonperformance, notices of protest, notice of acceleration, notices of intent to
accelerate, notices of dishonor, notices of acceptance of this Guaranty, and
notices of the existence, creation or incurring of new or additional Guaranteed
Obligations. The Company assumes all responsibility for being and keeping itself
informed of the Subsidiary Borrowers' financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which the Company
assumes and incurs hereunder, and agrees that the Administrative Agent and the
Lenders shall have no duty to advise the Company of information known to them
regarding such circumstances or risks.
SECTION 7.08. Legal Limitations of Liability. It is the desire and
intent of the Company, the Administrative Agent and the Lenders that this
Guaranty shall be enforced against the Company to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. If, however, and to the extent that, the obligations of
the Company under this Guaranty shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or
transfers), then the amount of the Guaranteed Obligations of the Company shall
be deemed to be reduced and the Company shall pay the maximum amount of the
Guaranteed Obligations which would be permissible under applicable law.
SECTION 7.09. Discharge Only Upon Payment. The Company's obligations
hereunder shall remain in full force and effect until the Commitments have
terminated and the principal and interest on the Loans and all other amounts
payable by the Borrowers under this Agreement shall have been paid in full. The
provisions of this Section 7.09 shall survive the termination of this Agreement
and any satisfaction or discharge of any Subsidiary Borrower or the Company by
virtue of any payment, any court order or any applicable law. The obligations of
the Company under this Article VII constitute the full recourse obligations of
the Company enforceable against it to the full extent of all its Property.
SECTION 7.10. Subrogation. The Company irrevocably waives any and all
rights to which it may be entitled, by operation of law or otherwise, upon
making any payment hereunder to be subrogated to the rights of the payee against
any Subsidiary Borrower with respect to such payment or otherwise to be
reimbursed, indemnified or exonerated by any Subsidiary Borrower in respect
thereof in any bankruptcy, insolvency or similar proceeding involving any
Subsidiary Borrower as debtor commencing within one year after the making of any
payment by any Subsidiary Borrower under this Agreement or in respect of the
Loans. The Company hereby further waives any right to enforce via subrogation
any other remedy which the Administrative Agent or any Lender now has or may
hereafter have against any Subsidiary Borrower and any right of indemnity,
reimbursement or contribution against any Subsidiary Borrower the Company may
have by virtue of the Company's performance of its obligations hereunder until
such time as the Administrative Agent and the Lenders have been indefeasibly
paid in full and the Commitments have expired or been terminated.
ARTICLE VIII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) any Borrower shall fail to pay when due any principal on any Loan,
or within five days of the due date thereof any fee or interest on any Loan or
any other amount payable hereunder;
(b) any Borrower shall fail to observe or perform any covenant
contained in Section 5.01(e), Sections 5.07 through 5.10 inclusive, or Sections
6.02 through 6.04 inclusive;
(c) any Borrower shall fail to observe or perform any covenant
contained in subsections 5.01(a), (b), (c), (d), (f), (g), (h) or (i) for 30
days after written notice thereof has been given to the Company by the
Administrative Agent at the request of any Lender;
(d) any Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clauses (a),
(b) or (c) above) for 30 days;
(e) any representation, warranty, certification or statement made or
deemed, pursuant to the terms hereof, to have been made by any Borrower in this
Agreement or in any certificate, financial statement or other notice delivered
pursuant to this Agreement shall prove to have been incorrect in any material
respect when made or deemed to have been made.
(f) the Company or any of its Subsidiaries shall fail to make any
payment in respect of any Material Financial Obligations when due or within any
applicable grace period; or
(g) any event or condition occurs that results in any Material
Financial Obligation becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Financial Obligation or any trustee
or agent on its or their behalf to cause any Material Financial Obligation to
become due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g) shall
not apply to secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such Indebtedness;
(h) Any Borrower or any 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, reorganization,
compromise, arrangement, insolvency, readjustment of debt, dissolution,
liquidation or other similar law of any jurisdiction now or hereafter in effect
(herein called the "Bankruptcy Law") or shall seek 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, approve or acquiesce in
any such relief or to the commencement of any involuntary case or other
proceeding described in clause (i) below or to the appointment of or taking
possession by any such official in any 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;
(i) an involuntary case or other proceeding shall be commenced against
any Borrower or any Material Subsidiary seeking liquidation, reorganization or
other relief with respect to its debts under any Bankruptcy Law 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 any Borrower or any
Material Subsidiary under any Bankruptcy Laws or an order, judgment or decree
shall be entered appointing any such trustee, receiver, custodian, liquidator or
similar official;
(j) Any Subsidiary Borrower becomes insolvent, is unable to pay its
debts as they fall due, stops, suspends or threatens to stop or suspend payment
of all or substantially all of its debts, begins negotiations to readjust,
reschedule or defer all or substantially all of its Indebtedness (which it will
otherwise be unable to pay when due) or proposes or makes a general assignment
or an arrangement or composition with or for the benefit of its creditors or a
moratorium is agreed or declared in respect of or affecting all or substantially
all of the Indebtedness of such Subsidiary Borrower;
(k) The Company or any ERISA Affiliate shall fail to pay when due (and
not being contested in good faith) an amount or amounts aggregating in excess of
the ERISA Obligation Threshold which it shall have become liable to pay to the
PBGC, the Internal Revenue Service or the Department of Labor or to a
Multiemployer Plan under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans having aggregate Unfunded Benefit Liabilities in excess of
$50,000,000 (collectively, a "Material Plan") shall be filed under Title IV of
ERISA by the Company or any ERISA Affiliate, 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 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 would cause the
Company or any ERISA Affiliate to incur a current payment obligation in excess
of $50,000,000; 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;
(l) a final judgment or order for the payment of money in excess of the
Final Judgment Threshold not covered by insurance (as to which insurance
coverage there is delivered to the Administrative Agent an opinion of counsel
reasonably satisfactory to the Administrative Agent that such coverage applies
to such judgment or order and that the applicable insurance carrier has not
contested the payment thereof) shall be rendered against the Company or any
Material Subsidiary and such judgment or order shall continue unsatisfied and
not stayed, bonded, vacated or suspended by agreement with the beneficiary
thereof for a period of 60 days;
(m) any event occurs which, under the law of the relevant jurisdiction,
has a substantially equivalent effect to any of the events mentioned in
paragraphs (h), (i), (j) (k) or (l) of this Section; then, and in every such
event (other than an event with respect to any Borrower described in
clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, (i) the Administrative Agent may, and at
the request of the Required Lenders shall, by notice to the Company, take either
or both of the following actions, at the same or different times (A) terminate
the Commitments and thereupon the Commitments shall terminate immediately,
and/or (B) declare the Loans then outstanding (together with accrued interest
thereon and all fees and all other amounts payable hereunder) to be, and such
amounts shall thereupon become, immediately due and payable without presentment,
demand, protest, notice to accelerate, notice of intent to accelerate or other
notice of any kind, all of which are hereby waived by each Borrower; provided
that in the case of any of the Events of Default specified in clause (h) or (i)
above with respect to any Borrower, without any notice to any Borrower or any
other act by the Administrative Agent or the Lenders, (i) the Commitments shall
thereupon terminate and the Loans (together with accrued interest thereon and
all fees and all other amounts payable hereunder) shall become immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Borrower; (ii) each Lender may exercise
its rights of offset against each account and all other property of any Borrower
or both in the possession of such Lender, which right is hereby granted by the
Borrowers to the Lenders; and (iii) the Administrative Agent and each Lender may
exercise any and all other rights pursuant to this Agreement, at law and in
equity.
ARTICLE IX
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with each Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.02), and (c) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to any Borrower or
any of its Subsidiaries that is communicated to or obtained by the bank serving
as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by any Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrowers), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders and each Borrower. Upon any such resignation, so
long as no Default exists, the Company shall have the right, with the consent of
the Required Lenders, such consent not to be unreasonably withheld, to appoint a
successor. If a Default exists, the Required Lenders shall have the right to
appoint a successor without the consent of the Company or any other Borrower. If
no successor shall have been so appointed by the Company or the Required
Lenders, as applicable, and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York
City, New York, or an Affiliate of any such bank, and which has a combined
capital and surplus of at least $500,000,000. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Company to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Company and
such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 10.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender 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 Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to ▇▇▇▇-▇▇▇▇▇ Corporation, to it at ▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to any Subsidiary Borrower, to its attention at the
address and the telephone and telecopy numbers set forth in clause (a) above;
(c) if to the Administrative Agent, to it at its offices
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, Attention of
Manager, Agency Services (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(d) if to any other Lender, to it at its address (or telecopy
number) set forth in the Notice Schedule.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by each Borrower and the Required Lenders, or each Borrower
and the Administrative Agent with the consent of the Required Lenders; provided
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) increase the maximum amount available
under the Foreign Available Amount without the written consent of each Lender
affected thereby, such consent not to be unreasonably withheld, (iii) reduce the
principal amount of any Loan or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iv) postpone the scheduled date of payment of the principal amount of
any Loan, or any interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender
affected thereby, (v) change Section 2.15(b) or (c) in a manner that would alter
the pro rata sharing of payments required thereby, without the written consent
of each Lender, (vi) change any of the provisions of this Section or the
definition of "Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender, (vii) change any of the provisions of Section
10.04(a) without the written consent of each Lender, (viii) change the Type of
Loans available or the currencies in which Loans are available without the
written consent of each Lender, (ix) permit a change in ownership of any
Subsidiary Borrower unless the Company maintains 100% direct or indirect
ownership without the written consent of each Lender, or (x) release the Company
from its obligations contained in Article VII without the written consent of
each Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent hereunder
without the prior written consent of the Administrative Agent .
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The Borrowers
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel to the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, reasonable publicity expenses agreed to by the Company, the preparation
and administration of this Agreement or any amendments, modifications or waivers
of the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), and (ii) all out-of-pocket expenses incurred by
the Administrative Agent or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section, or in connection with
the Loans made hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans.
(b) The Borrowers shall indemnify the Administrative Agent and
each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including the reasonable fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or the use of the proceeds therefrom, (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by any
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to any Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) To the extent that any Borrower fails to pay any amount
required to be paid by it to the Administrative Agent under paragraph (a) or (b)
of this Section, each Lender severally agrees to pay to the Administrative Agent
such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, each Borrower
shall not assert, and hereby waive, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.04. 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 permitted hereby, except that a
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by a Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided, that
(i) except in the case of an assignment to a Lender, an Affiliate of a Lender,
or to the United States Federal Reserve Banks, each Borrower and the
Administrative Agent must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld), (ii) except in the case of
an assignment of the entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000, (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, (iv) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, and (v) the assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an
administrative questionnaire in the form supplied by the Administrative Agent;
and provided further that any consent of the Borrowers otherwise required under
this paragraph shall not be required if an Event of Default has occurred and is
continuing. Subject to acceptance and recording thereof pursuant to paragraph
(d) of this Section, from and after the effective date specified in each
Assignment and Acceptance, the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.12, 2.13, 2.14 and 10.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of all Borrowers, shall maintain at one of its offices in New York City,
New York, a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and each Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by any Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed administrative questionnaire in the form supplied by the
Administrative Agent (unless the assignee shall already be a Lender hereunder),
the processing and recordation fee referred to in paragraph (b) of this Section
and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(e) Any Lender may, without the consent of any Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) each
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, each Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and
2.14 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.08 as
though it were a Lender; provided such Participant agrees to be subject to
Section 2.15(c) and 2.16 as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.12 or 2.14 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Company's prior written consent. A Participant that would be a Foreign Lender if
it were a Lender shall not be entitled to the benefits of Section 2.14 unless
each Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of each Borrower, to comply with Section
2.14(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a United States Federal Reserve Bank, and this Section shall not
apply to any such pledge or assignment of a security interest; provided that no
such pledge or assignment of a security interest shall release a Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
(h) Any assignee or Participant under this Section 10.04 shall
have an office or a branch or an Affiliate available to it and located in the
appropriate jurisdiction through which such assignee or Participant can make any
Eurodollar Loan or a Loan denominated in an Alternate Currency as required under
this Agreement.
(i) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose funding vehicle
(an "SPC") sponsored by such Granting Lender, identified as such in writing from
time to time by the Granting Lender to the Administrative Agent and the Company,
the option to provide to the Company all or any part of any Loan that such
Granting Lender would otherwise be obligated to make to the Borrower pursuant to
this Agreement, provided that (i) nothing herein shall constitute a commitment
by any SPC to make any Loan and (ii) if an SPC elects not to exercise such
option or otherwise fails to provide all or any part of such Loan, the Granting
Lender shall be obligated to make such Loan pursuant to the terms hereof. The
making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by the
Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for
any payment under this Agreement for which a Lender would otherwise be liable
(all liability for which, if any, shall remain with the Granting Lender). In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the later of (A) the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPC and (B) the
Final Maturity Date, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of
the United States or any state thereof. In addition, notwithstanding anything to
the contrary contained in this Section 10.04, any SPC may, with notice to, but
without prior written consent of, the Company, any Subsidiary Borrower or the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to the Granting Lender or to any
financial institutions providing liquidity and/or credit support to or for the
account of such SPC to fund the Loans made by such SPC or to support the
securities (if any) issued by such SPC to fund such Loans and disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
liquidity or credit enhancement to such SPC.
SECTION 10.05. Survival. All covenants, agreements, representations and
warranties made by any Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.12, 2.13, 2.14 and 10.03 shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Commitments or the termination of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of any
Borrower against any of and all the obligations of such Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against any Borrower or its properties in the courts of any
jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to
service of process to the General Counsel of the Company at ▇▇▇▇-▇▇▇▇▇
Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇). Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. Each party hereto hereby waives,
to the fullest extent permitted by applicable law, any right it may have to a
trial by jury in any legal proceeding directly or indirectly arising out of or
relating to this Agreement or the Transactions contemplated hereby (whether
based on contract, tort or any other theory). Each party hereto (a) certifies
that no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver and (b) acknowledges that it
and the other parties hereto have been induced to enter into this Agreement by,
among other things, the mutual waivers and certifications in this Section.
SECTION 10.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Company
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than a Borrower. For the purposes of this Section, "Information" means all
information received from any Borrower relating to such Borrower or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by such Borrower; provided that, in the case of information received
from such Borrower after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 10.13. Currency Indemnity. (a) If any amount payable by any
Borrower under or in connection with any Loan or any other obligation under or
in connection herewith is received by any Lender in a currency (the "Payment
Currency") other than that agreed to be payable in this Agreement (the "Agreed
Currency"), whether as a result of any judgment or order or the enforcement of
the same, the liquidation of such Borrower or otherwise and the amount produced
by converting the Payment Currency so received into the Agreed Currency at
market rates prevailing at or about the time of receipt of the Payment Currency
is less than the amount of the Agreed Currency due with respect to such Loan,
then such Borrower and the Company shall and hereby does, as an independent and
additional obligation, indemnify each Lender for the deficiency and any loss
sustained as a result.
(b) The above indemnity shall constitute separate and
independent obligations of each Borrower from its other obligations under this
Agreement and shall apply irrespective of any indulgence granted by the
Administrative Agent or any Lender. The applicable Borrower shall pay reasonable
costs of making any conversion from the Payment Currency to the Agreed Currency.
(c) Each Borrower hereby waives any right it may have in any
jurisdiction to pay any amount due and owing hereunder in a currency other than
that which it is expressed to be payable under the terms and conditions of this
Agreement.
SECTION 10.14. Subsidiary Borrower Several Obligations. The obligations
of each Subsidiary Borrower under this Agreement are several and the failure of
any Subsidiary Borrower to perform its obligations under this Agreement shall
not affect the obligations of any Borrower towards any of the other parties to
this Agreement.
(b) No assurance, security or payment which may be avoided
under any laws relating to bankruptcy, insolvency or corporate reorganization
and no release, settlement or discharge of any of the Subsidiary Borrowers which
may have been given or made on the faith of any such assurance, security or
payment, shall prejudice or affect the right of the Administrative Agent or any
Lender to recover from any other Subsidiary Borrower to the full extent of its
obligations under this Agreement just as if such release, settlement or
discharge had not occurred.
(c) Each Subsidiary Borrower hereby waives any rights it may
have under applicable law which may at any time be inconsistent with any of the
provisions of this Agreement or which it may have of first requiring the
Administrative Agent or any Lender to proceed against or claim payment from
another Borrower or any other party or parties. It is further agreed that all or
any of the Administrative Agent and the Lenders, without notice to any of the
Subsidiary Borrowers and without affecting or impairing the obligations of such
Subsidiary Borrowers hereunder, may grant time, indulgences, concessions,
releases and discharges to, may take securities from and give the same, may
accept compositions from and may otherwise deal with each other Borrower and all
other parties as they may see fit and generally may otherwise do or omit to do
any act or thing which, but for this provision, might operate to affect or
impair the obligations of each of the Subsidiary Borrowers hereunder. The
obligations of the Subsidiary Borrowers hereunder shall not be affected or
impaired by any amendment or modification hereto.
SECTION 10.15. Joint and Several Obligations of the Company. (a) The
liability of the Company under this Agreement with respect to its own
obligations and the obligations of each Subsidiary Borrower is joint and several
and therefore, without prejudice to any other provision of this Agreement, the
Company hereby unconditionally and irrevocably undertakes, as principal obligor,
to the Administrative Agent and the Lenders the due and unconditional
performance and discharge by each of the other Borrowers of all the obligations
expressed to be binding upon such Borrowers hereunder as the same may be amended
from time to time (the "Relevant Obligations") and, without limitation, agrees
with the Administrative Agent and the Lenders that if and whenever at any time
and from time to time any of the other Borrowers shall fail to perform or
discharge or shall otherwise be in default in respect of any of the Relevant
Obligations it shall discharge and make good the default as if it instead of the
relevant other Borrower was expressed to be such Borrower hereunder.
(b) No assurance, security or payment which may be avoided
under any laws relating to bankruptcy, insolvency or corporate reorganization
and no release, settlement or discharge of any of the Subsidiary Borrowers which
may have been given or made on the faith of any such assurance, security or
payment, shall prejudice or affect the right of the Administrative Agent or any
Lender to recover from the Company to the full extent of the undertakings given
in this Section 10.15 just as if such release, settlement or discharge had not
occurred.
(c) The Company hereby waives any rights it may have under
applicable law which may at any time be inconsistent with any of the provisions
of this Agreement or which it may have of first requiring the Administrative
Agent or any Lender to proceed against or claim payment from another Borrower or
any other party or parties. It is further agreed that all or any of the
Administrative Agent and the Lenders, without notice to the Company and without
affecting or impairing the obligations of the Company hereunder, may grant time,
indulgences, concessions, releases and discharges to, may take securities from
and give the same, may accept compositions from and may otherwise deal with each
other Borrower and all other parties as they may see fit and generally may
otherwise do or omit to do any act or thing which, but for this provision, might
operate to affect or impair the obligations of the Company hereunder. The
obligations of the Company hereunder shall not be affected or impaired by any
amendment or modification hereto.
(d) The Company hereby waives notice of the acceptance of this
undertaking and of presentment, demand and protest and notices of non-payment
and dishonor and any other demands and notices required by applicable law.
SECTION 10.16. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 10.17. International Banking Facilities. Each Borrower
acknowledges by its execution and delivery hereof (or by its execution and
delivery of any applicable Joinder Agreement) that (a) it is the policy of the
Board that deposits received by international banking facilities may be used
only to support the non-U.S. operations of a depositor (or its foreign
affiliates) located outside the United States and that extensions of credit by
international banking facilities may be used only to finance the non-U.S.
operations of a Borrower (or its foreign affiliates) located outside the U.S.
and (b) funds deposited by any Borrower with an international banking facility
of any Lender will be used solely in support of such non-U.S. operations, or
that of such foreign affiliates, and that the proceeds of any Borrowings from
any such international banking facility will be used solely to finance such
non-U.S. operations, or that of such foreign affiliates. Any terms used in this
Section 10.17 that are not otherwise defined herein, shall have the meaning
assigned thereto in Regulation D of the Board (as amended from time to time).
[The remaining portion of this page is intentionally left blank.]
F:\KA0573\ROY200\KMG\CA364FNL.WPD
[Signature Page - 18]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
▇▇▇▇-▇▇▇▇▇ CORPORATION, as the Company and as guarantor
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
By:
▇▇▇▇ ▇. ▇▇▇▇
Vice President & Treasurer
▇▇▇▇-▇▇▇▇▇ CREDIT LLC,
as a Subsidiary Borrower
By:
▇▇▇▇ ▇. ▇▇▇▇
Vice President & Treasurer
▇▇▇▇-▇▇▇▇▇ (G.B.) LIMITED,
as a Subsidiary Borrower
By:
▇▇▇▇ ▇. ▇▇▇▇
Director
▇▇▇▇-▇▇▇▇▇ RESOURCES (U.K.) LIMITED,
as a Subsidiary Borrower
By: ▇▇▇▇ ▇. ▇▇▇▇
Director
▇▇▇▇-▇▇▇▇▇ OIL (U.K.) PLC,
as a Subsidiary Borrower
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Director
▇▇▇▇-▇▇▇▇▇ NORTH SEA (U.K.) LIMITED,
as a Subsidiary Borrower
By:
▇▇▇▇ ▇. ▇▇▇▇
Director
▇▇▇▇-▇▇▇▇▇ GmbH,
as a Subsidiary Borrower
By: KM Investment Corporation, its
sole stockholder
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇-▇▇▇▇▇ CHEMICAL GmbH,
as a Subsidiary Borrower
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director
ROYAL BANK OF CANADA, individually and
as Administrative Agent
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Manager
KBC BANK N.V.
By
Name:
Title:
THE BANK OF NEW YORK
By
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By
Name:
Title:
By
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By
Name:
Title:
BANCFIRST, A STATE BANKING ASSOCIATION
By
Name:
Title:
UMB OKLAHOMA BANK
By
Name:
Title:
BANQUE NATIONALE de PARIS
By
Name:
Title:
ABN AMRO BANK N.V.
By:
Name:
Title:
NATIONSBANK, N.A.
By:
Name:
Title:
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION
By:
Name:
Title:
CITIBANK, N.A.
By:
Name:
Title:
MELLON BANK, N.A.
By:
Name:
Title:
WACHOVIA BANK OF GEORGIA, N.A.
By:
Name:
Title:
BANK OF OKLAHOMA, N.A.
By:
Name:
Title:
BAYERISHE LANDESBANK
By:
Name:
Title:
[Schedule A - Page 1 of 1]
SCHEDULE A
COMMITMENTS
LENDER COMMITMENT TITLE
----------------------------------------------------------------------------
Royal Bank of Canada $36,666,666.66 Administrative Agent
----------------------------------------------------------------------------
----------------------------------------------------------------------------
NationsBank, N.A. $25,000,000.00 Syndication Agent
----------------------------------------------------------------------------
----------------------------------------------------------------------------
ABN AMRO Bank N.V. $25,000,000.00 Documentation Agent
----------------------------------------------------------------------------
----------------------------------------------------------------------------
The Bank of New York $21,666,666.67 Co-Agent
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Chase Bank of Texas, National $21,666,666.67 Co-Agent
Association
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Citibank, N.A. $21,666,666.67 Co-Agent
----------------------------------------------------------------------------
----------------------------------------------------------------------------
The First National Bank of Chicago $21,666,666.67 Co-Agent
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Westdeutsche Landesbank Girozentrale, $21,666,666.67 Co-Agent
New York Branch
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Mellon Bank, N.A. $15,000,000.00 Manager
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Bank of Oklahoma, N.A. $8,333,333.33 Participant
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Banque Nationale de Paris $8,333,333.33 Participant
----------------------------------------------------------------------------
----------------------------------------------------------------------------
KBC Bank N.V. $8,333,333.33 Participant
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Wachovia Bank of Georgia, N.A. $8,333,333.33 Participant
----------------------------------------------------------------------------
----------------------------------------------------------------------------
UMB Oklahoma Bank $5,000,000.00 Participant
----------------------------------------------------------------------------
----------------------------------------------------------------------------
BancFirst, a State Banking Association $1,666,666.67 Participant
----------------------------------------------------------------------------
[Schedule B - Page 2 of 2]
SCHEDULE B
PRICING SCHEDULE
The Applicable Rate, for any day, with respect to any EURIBOR Loan or
LIBOR Loan, or with respect to the facility fees or utilization fees payable
hereunder, as the case may be, is the rate per annum set forth below based upon
the Ratings by Duff & ▇▇▇▇▇▇, ▇▇▇▇▇'▇ and S&P, respectively, applicable on such
date to the Rating Debt:
-------------------------------------- --------------------------- ------------
Rating Facility Fee EURIBOR/LIBOR Loan Margin Utilization
Fee
greater than
or equal to
33% usage
-------------------------------------- --------------------------- ------------
Level One 0.07% 0.23% 0.05%
greater than
or equal to A/A2
-------------------------------------- --------------------------- ------------
Level Two 0.08% 0.27% 0.10%
greater than
or equal to A-/A3
-------------------------------------- --------------------------- ------------
Level Three 0.09% 0.385% 0.10%
greater than
or equal to BBB+/Baa1
-------------------------------------- --------------------------- ------------
Level Four 0.10% 0.50% 0.10%
$BBB/Baa2
-------------------------------------- --------------------------- ------------
-------------------------------------- --------------------------- ------------
Level Five 0.15% 0.575 % 0.15%
$BBB-/Baa3
-------------------------------------- --------------------------- ------------
-------------------------------------- --------------------------- ------------
Level Six 0.25% 0.75% 0.25%
greater than
BBB-/Baa3
-------------------------------------- --------------------------- ------------
For purposes of the foregoing, (a) if the Ratings established or deemed
to have been established by ▇▇▇▇▇'▇, Duff & ▇▇▇▇▇▇, and S&P for the Rating Debt
shall fall within different Levels, the Applicable Rate shall be based on the
two highest Ratings; provided, that if such two highest Ratings also fall within
different Levels, (i) where the split represents one subgrade the Applicable
Rate will be determined based on the lower of such two Levels; and (ii) where
the split represents two or more subgrades, the Applicable Rate will be
determined by reference to the Level at the midpoint of such highest ratings;
provided, that if such midpoint falls between Levels, the Applicable Rate will
be determined by reference to the Level immediately below such midpoint; (b) if
the Ratings established or deemed to have been established by ▇▇▇▇▇'▇, Duff &
▇▇▇▇▇▇, and S&P for the Rating Debt shall be changed (other than as a result of
a change in the rating system of ▇▇▇▇▇'▇, Duff & ▇▇▇▇▇▇, or S&P), such change
shall be effective as of the date on which it is first announced by the
applicable Rating Agency; (c) if ▇▇▇▇▇'▇, Duff & ▇▇▇▇▇▇, or S&P shall not have
in effect a Rating for the Rating Debt (other than by reason of the
circumstances referred to in the last sentence of this paragraph), then such
Rating Agency shall be deemed to have established a Rating in Level 6. Each
change in the Applicable Rate shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of ▇▇▇▇▇'▇, Duff &
▇▇▇▇▇▇, or S&P shall change, or if any such Rating Agency shall cease to be in
the business of rating corporate debt obligations, the Company and the Lenders
shall negotiate in good faith to amend this definition to reflect such changed
rating system or the unavailability of Ratings from such Rating Agency and,
pending the effectiveness of any such amendment, the Applicable Rate shall be
determined by reference to the Rating most recently in effect prior to such
change or cessation. Notwithstanding the foregoing, if on the Effective Date, at
least two of the Rating Agencies have not announced a Rating expressly to be
effective after the Oryx Merger, Level Three pricing shall apply from the
Effective Date until at least two of the Rating Agencies shall have announced
such Ratings.
[Schedule C - Page 3 of 3]
SCHEDULE C
NOTICE SCHEDULE
KBC BANK N.V.
▇▇▇▇▇ ▇▇▇▇▇▇, Loan Administration
KBC Bank N.V.
New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NEW YORK
▇▇▇▇▇ ▇▇▇▇▇, Energy Industries Division
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH ▇▇▇▇▇▇ ▇▇▇▇▇ Westdeutsche
Landesbank Girozentrale, New York Branch 1211 Avenue of the americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
THE FIRST NATIONAL BANK OF CHICAGO
▇▇▇▇ ▇▇▇▇▇
The First National Bank of Chicago
One First National Plaza
0634, 1FNP, 10
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
BANCFIRST, A STATE BANKING ASSOCIATION
▇▇▇▇▇▇ ▇▇▇▇▇
BancFirst
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
UMB OKLAHOMA BANK
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
UMB Oklahoma Bank
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
BANQUE NATIONALE de PARIS, HOUSTON AGENCY
▇▇▇▇▇ ▇▇▇▇
Banque Nationale de Paris, Houston Agency
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
ROYAL BANK OF CANADA, INDIVIDUALLY AND AS ADMINISTRATIVE AGENT ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Royal Bank of Canada ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
ABN AMRO BANK N.V.
ABN AMRO Bank N.V.
Attention: Loan Administration
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
NATIONSBANK, N.A.
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
▇▇▇▇▇▇▇ ▇▇▇▇
Chase Bank of Texas, National Association
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
CITIBANK, N.A.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Citibank, N.A.
2100 Citicorp Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
MELLON BANK, N.A.
▇▇▇▇▇ ▇▇▇▇
Three Mellon ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
WACHOVIA BANK OF GEORGIA, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Wachovia Bank of Georgia, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF OKLAHOMA, N.A.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Bank of Oklahoma, N.A.
201 ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
[Schedule 3.14 - Page 1 of 1]
SCHEDULE 3.14
MATERIAL SUBSIDIARIES
▇▇▇▇-▇▇▇▇▇ Oil and Gas Corporation
▇▇▇▇-▇▇▇▇▇ Chemical LLC
KM Investment Corporation
Sun Energy Partners, L.P.
[Exhibit A - Page 3 of 3]
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the $250,000,000 364-Day Revolving Credit
Agreement dated as of ________, 1999 (as amended and in effect on the date
hereof, the "Credit Agreement"), among ▇▇▇▇-▇▇▇▇▇ Corporation, a Delaware
corporation, the Subsidiary Borrowers parties thereto, the Lenders named
therein, and Royal Bank of Canada, as Administrative Agent. Terms defined in the
Credit Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and assigns,
without recourse, to the Assignee named on the reverse hereof, and the Assignee
hereby purchases and assumes, without recourse, from the Assignor, effective as
of the Assignment Date set forth on the reverse hereof, the interests set forth
on the reverse hereof (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth on the reverse hereof in the Commitment of the Assignor on
the Assignment Date and Loans owing to the Assignor which are outstanding on the
Assignment Date, but excluding accrued interest and fees to and excluding the
Assignment Date. The Assignee hereby acknowledges receipt of a copy of the
Credit Agreement. From and after the Assignment Date (i) the Assignee shall be a
party to and be bound by the provisions of the Credit Agreement and, to the
extent of the Assigned Interest, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the Assigned Interest,
relinquish its rights and be released from its obligations under the Credit
Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.14(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an administrative
questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The Assignee/Assignor shall pay the fee payable to the
Administrative Agent pursuant to Section 10.04(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
Percentage Assigned of
Facility/Commitment (set forth,
to at least eight decimals, as a
Principal Amount Assigned percentage of the Facility and
the aggregate Commitments of all
Lenders thereunder)
Facility
-------------------- ------------------------- ================================
-------------------- ------------------------- ================================
Commitment Assigned: $ %
-------------------- ------------------------- ================================
-------------------- ------------------------- ================================
Loans:
-------------------- ------------------------- ================================
The terms set forth above and on the reverse side hereof are hereby agreed to:
[Name of Assignor] , as Assignor
By:
Name:
Title:
[Name of Assignee] , as Assignee
By:
Name:
Title:
The undersigned hereby consent to the within assignment:
[▇▇▇▇-▇▇▇▇▇ Corporation] Royal Bank of Canada,
as Administrative Agent
By: By:
Name: Name:
Title: Title:
[Exhibit B-1 - Page 2 of 2]
EXHIBIT B-1
FORM OF
OPINION OF ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
February 26, 1999
To the Lenders and the Administrative
Agent Referred to Below
c/o Royal Bank of Canada, as
Administrative Agent
Dear Sirs:
I have acted as counsel for ▇▇▇▇-▇▇▇▇▇ Corporation, a Delaware
corporation (the "Company") and each Subsidiary Borrower (as defined in the
following described Credit Agreement), in connection with the $250,000,000
364-Day Revolving Credit Agreement dated as of February 26, 1999 (the "Credit
Agreement"), among the Company, the Subsidiary Borrowers, the banks and other
financial institutions identified therein as Lenders, and Royal Bank of Canada,
as Administrative Agent. Terms defined in the Credit Agreement are used herein
with the same meanings.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as I have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware. Each
Domestic Subsidiary Borrower organized under the laws of the United States of
America, any State thereof, or the District of Columbia, is a corporation duly
incorporated, validly existing and in good standing (or, if such Domestic
Subsidiary Borrower is a limited liability company, is a limited liability
company duly formed, validly existing and in good standing) under the laws of
its jurisdiction of incorporation, organization or formation. Each Foreign
Subsidiary Borrower organized under the laws of a jurisdiction other than United
States of America, any State thereof, or the District of Columbia, is a company
duly established and validly existing under the laws of its jurisdiction of
formation.
2. The Company and each Subsidiary Borrower (a) has all
requisite corporate or limited liability company power and authority to carry on
its business as now conducted, and (b) except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
3. The Transactions are within the Company's and each
Subsidiary Borrower's corporate or limited liability company powers and have
been duly authorized by all necessary corporate or limited liability company,
and, if required, stockholder action. The Credit Agreement has been duly
executed and delivered by each Borrower.
4. The Transactions (a) do not require any consent or approval
of, registration or filing with, or any other action by, any Governmental
Authority, except such as have been obtained or made and are in full force and
effect, (b) will not violate any applicable law or regulation or the charter,
by-laws or other organizational documents of each Borrower or any of its
Subsidiaries or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, agreement or other instrument binding
upon each Borrower or any of its Subsidiaries or its assets, or give rise to a
right thereunder to require any payment to be made by a Borrower or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Company or any of its Subsidiaries.
5. There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to my knowledge,
threatened against or affecting the Company or any of its Subsidiaries (a) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect or (b) that involve the Credit
Agreement or the Transactions.
6. Neither the Company nor any of its Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
I am a member of the bar of the State of Oklahoma and the
foregoing opinion is limited to the laws of the State of Oklahoma, the General
Corporation Law of the State of Delaware and the Federal laws of the United
States of America. 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 (other than your successors and assigns as
Lenders and Persons that acquire participations in your Loans) without our prior
written consent.
Very truly yours,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Senior Vice President &
General Counsel
[Exhibit B-2 - Page 4 of 4]
EXHIBIT B-2
FORM OF
OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
February 26, 1999
Royal Bank of Canada, as Administrative Agent under the Credit Agreement, as
hereinafter defined (the "Agent")
and
The Lenders listed on Schedule I hereto which are parties to the Credit
Agreement on the date hereof
Ladies and Gentlemen:
We have acted as counsel to ▇▇▇▇-▇▇▇▇▇ Corporation (the "Company") and
the subsidiaries of the Company named on Schedule II attached hereto (each, a
"Subsidiary Borrower" and, collectively, the "Subsidiary Borrowers"; the Company
and the Subsidiary Borrowers being referred to herein collectively as the
"Credit Parties") in connection with the preparation, execution and delivery of
the $250,000,000 364-Day Revolving Credit Agreement dated as of February 26,
1999 (the "Credit Agreement") among the Company, the Subsidiary Borrowers, the
lending institutions identified in the Credit Agreement (the "Lenders") and the
Agent. Unless otherwise indicated, capitalized terms used but not defined herein
shall have the respective meanings set forth in the Credit Agreement. This
opinion is furnished to you pursuant to Section 4.01(c) of the Credit Agreement.
In connection with this opinion, we have examined the Credit Agreement,
signed by each Credit Party thereto and by the Agent and certain of the Lenders.
We also have examined the originals, or duplicates or certified or conformed
copies, of such records, agreements, instruments and other documents and have
made such other investigations as we have deemed relevant and necessary in
connection with the opinions expressed herein. As to questions of fact material
to this opinion, we have relied upon certificates of public officials and of
officers and representatives of the Credit Parties. In addition, we have
examined, and have relied as to matters of fact upon, the representations made
in the Credit Agreement.
In rendering the opinions set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates or certified
or conformed copies, and the authenticity of the originals of such latter
documents.
Based upon and subject to the foregoing, and subject to the
qualifications and limitations set forth herein, we are of the opinion that:
1. Assuming that proceeds of borrowings will be used in accordance with
the terms of the Credit Agreement, the execution and delivery by any Credit
Party of the Credit Agreement, its borrowings in accordance with the terms of
the Credit Agreement and performance of its payment obligations thereunder will
not result in any violation of any New York statute or any rule or regulation
issued pursuant to any New York statute.
2. No consent, approval, authorization, order, filing, registration or
qualification of or with any New York governmental agency is required for the
execution and delivery by any Credit Party of the Credit Agreement or the
borrowings by any Credit Party in accordance with the terms of the Credit
Agreement.
3. Assuming that the Credit Agreement is a valid and legally binding
obligation of each of the Lenders party thereto and assuming that (a) each of
the Credit Parties is validly existing and in good standing under the laws of
the jurisdiction in which it is organized and has duly authorized, executed and
delivered the Credit Agreement in accordance with its Certificate of
Incorporation and By-Laws, (b) execution, delivery and performance by each
Credit Party of the Credit Agreement do not violate the laws of the jurisdiction
in which it is organized or any other applicable laws (excepting the laws of the
State of New York), (c) execution, delivery and performance by each Credit Party
of the Credit Agreement do not constitute a breach or violation of any agreement
or instrument which is binding upon such Credit Party and (d) no Credit Party is
an "investment company" within the meaning of and subject to regulation under
the Investment Company Act of 1940, the Credit Agreement constitutes the valid
and legally binding obligation of each Credit Party, enforceable against such
Credit Party in accordance with its terms.
Our opinions in paragraph 3 above are subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or at
law), (iii) an implied covenant of good faith and fair dealing and (iv) the
effects of the possible judicial application of foreign laws or foreign
governmental or judicial action affecting creditors' rights.
We note that (A) a New York statute provides that with respect to a
foreign currency obligation a court of the State of New York shall render a
judgment or decree in such foreign currency and such judgment or decree shall be
converted into currency of the United States at the rate of exchange prevailing
on the date of entry of such judgment or decree and (B) with respect to a
foreign currency obligation a United States Federal court in New York may award
judgment in United States dollars, provided that we express no opinion as to the
rate of exchange such court would apply.
We express no opinion with respect to:
(A) the effect of any provision of the Credit Agreement which is
intended to permit modification thereof only by means of an agreement signed in
writing by the parties thereto;
(B) the effect of any provision of the Credit Agreement insofar as it
provides that any Person purchasing a participation from a Lender or other
Person may exercise set-off or similar rights with respect to such participation
or that any Lender or other Person may exercise set-off or similar rights other
than in accordance with applicable law;
(C) the effect of any provision of the Credit Agreement imposing
penalties or forfeitures; (D) the enforceability of any provision of
the Credit Agreement to the extent that such provision
constitutes a waiver of illegality as a defense to performance of contract
obligations; (E) the effect of any provision of the Credit Agreement relating to
indemnification or exculpation in connection with violations of any securities
laws or relating to indemnification, contribution or exculpation in connection
with willful, reckless or criminal acts or gross negligence of the indemnified
or exculpated Person or the Person receiving contribution.; and
(F) the effect of any provision of the Credit Agreement whereby the
Credit Parties submit to the jurisdiction of the United States District Court
for the Southern District of New York or the Supreme Court of the State of New
York.
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State of
New York.
This opinion letter is rendered to you in connection with the above
described transactions. This opinion letter may not be relied upon by you for
any other purpose, or relied upon by any other person, firm or corporation
without our prior written consent.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
[Exhibit B-2 - Schedule I - Page 1 of 1]
SCHEDULE I
THE LENDERS
Royal Bank of Canada
NationsBank, N.A.
ABN AMRO Bank, N.V.
The Bank of New York
Chase Bank of Texas, National Association
Citibank, N.A.
The First National Bank of Chicago
Westdeutsche Landesbank Girozentrale,
New York Branch
Mellon Bank, N.A.
Bank of Oklahoma, N.A.
Banque Nationale de Paris
KBC Bank N.V.
Wachovia Bank of Georgia, N.A.
UMB Oklahoma Bank
BancFirst, a State Banking Association
[Exhibit B-2 - Schedule II - Page 1 of 1]
SCHEDULE II
SUBSIDIARY BORROWERS
▇▇▇▇-▇▇▇▇▇ Chemical GmbH
▇▇▇▇-▇▇▇▇▇ Credit LLC
▇▇▇▇-▇▇▇▇▇ (G.B.) Limited
▇▇▇▇-▇▇▇▇▇ GmbH
▇▇▇▇-▇▇▇▇▇ North Sea (U.K.) Limited
▇▇▇▇-▇▇▇▇▇ Oil (U.K.) PLC
▇▇▇▇-▇▇▇▇▇ Resources (U.K.) Limited
[Exhibit C - Page 2 of 2]
EXHIBIT C
FORM OF
JOINDER AGREEMENT
Reference is made to the $250,000,000 364-Day Revolving Credit
Agreement, dated as of February 26, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"; terms defined therein being
used herein as therein defined), among ▇▇▇▇-▇▇▇▇▇ Corporation, a Delaware
corporation, the Subsidiary Borrowers parties thereto, the Lenders named
therein, and Royal Bank of Canada, as Administrative Agent.
The undersigned hereby acknowledges that it has received and
reviewed a copy (in execution form) of the Credit Agreement, and agrees to:
(i) join the Credit Agreement as a Subsidiary Borrower
party thereto;
(ii) be bound by all covenants, agreements and
acknowledgments attributable to a Borrower in the
Credit Agreement and any Note to which it is a party;
and
(iii) perform all obligations required of it by the Credit
Agreement and any Note to which it is a party.
The undersigned hereby represents and warrants that the
representations and warranties with respect to it contained in, or made or
deemed made by it in, Article III of the Credit Agreement are true and correct
on the date hereof.
The undersigned hereby certifies that attached hereto are (i)
the true and correct organizational documents of the undersigned, as amended,
(ii) certificates of continued existence and good standing or their equivalent
with respect to the undersigned, (iii) true and correct copies of any corporate
resolution, or such other appropriate evidence of authority, providing for the
undersigned to execute and deliver this Joinder Agreement and to become a party
to the Credit Agreement and (iv) an officers' incumbency certificate for the
undersigned.
THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Joinder
Agreement to be duly executed and delivered in New York City, New York by its
proper and duly authorized officer as of this day of
, [1999] [20__].
[SUBSIDIARY BORROWER]
By:
Title:
ACKNOWLEDGED AND AGREED TO:
▇▇▇▇-▇▇▇▇▇ CORPORATION
By:
Name:
Title:
[Exhibit D - Page 4 of 4]
EXHIBIT D
FORM OF
CASH COLLATERAL ACCOUNT AGREEMENT
[Between][Among]
[▇▇▇▇-▇▇▇▇▇ CORPORATION,
[SUBSIDIARY BORROWER]],
and
ROYAL BANK OF CANADA,
as Administrative Agent
Dated as of [ ]
THIS CASH COLLATERAL ACCOUNT AGREEMENT (this "Agreement") is made and
entered into as of the __ day of _______, ____, [between][among] [▇▇▇▇-▇▇▇▇▇
CORPORATION, a Delaware corporation (the "Company"), [______________________, a
____________________ (" "),]] and ROYAL BANK OF CANADA ("RBC"), as
administrative agent (in such capacity, the "Administrative Agent") for itself
and the Lenders (as defined in the Credit Agreement referred to below).
RECITALS
A. On February 26, 1999, the Company, the Subsidiary Borrowers (as
defined in the Credit Agreement), the Administrative Agent and the Lenders
executed that certain Revolving Credit Agreement (as amended from time to time,
the "Credit Agreement") whereby, upon the terms and conditions stated therein,
the Lenders agreed to make Loans (as defined in the Credit Agreement) (a) to the
Company and the Domestic Subsidiary Borrowers (as defined in the Credit
Agreement) or any one or more of them, up to the Domestic Available Amount (as
defined in the Credit Agreement) and (b) to the Foreign Subsidiary Borrowers (as
defined in the Credit Agreement) or any one or more of them up to the Foreign
Available Amount (as defined in the Credit Agreement).
B. Section 2.08(c) of the Credit Agreement provides that in the event
that (i) the aggregate principal amount of all Loans made to the Company and the
Domestic Subsidiary Borrowers exceeds the Domestic Available Amount or (ii) the
aggregate amount of all Loans made to the Company and the Foreign Subsidiary
Borrowers exceeds the Foreign Available Amount, the Company may, and may cause
one of more of the Subsidiary Borrowers to, in lieu of prepaying such excess
described in clause (i) or (ii) above, provide cash collateral equal to the
amount of such excess plus any accrued and unpaid interest thereon, to the
Administrative Agent for the benefit of the Lenders pursuant to the terms and
conditions of this Agreement.
C. Therefore, in accordance with the terms of Section 2.08(c) of the
Credit Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, [the Company and [Subsidiary
Borrower]] hereby [agrees][agree] and with the Administrative Agent as follows:
AGREEMENT
Section (1) Pursuant to Section 2.08(c) of the Credit Agreement,
simultaneously with the execution of this Agreement, [the Company and
[Subsidiary Borrower]] will make [a deposit][deposits] in an amount equal to the
excess as determined in accordance with Section 2.08(c)[(ii)][(iii)] of the
Credit Agreement plus all accrued and unpaid interest thereon (the "Cash
Collateral") in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders styled "▇▇▇▇-▇▇▇▇▇ Cash
Collateral Account," which is an interest bearing collateral account and is
subject to the exclusive dominion and control, including the exclusive right of
withdrawal, of the Administrative Agent (the "Cash Collateral Account").
Section (2) [The Company and [Subsidiary Borrower]] hereby
[pledge][pledges] and [grant][grants] to the Administrative Agent for the
account of the Lenders a security interest in the Cash Collateral and the Cash
Collateral Account to secure the payment and performance of the obligations of
the Company and the Subsidiary Borrowers under the Credit Agreement.
Section (3)
(a) The Cash Collateral may be invested by the Administrative
Agent at the option and sole discretion of the Administrative Agent and
at the risk and expense of [the Company and [Subsidiary Borrower]].
Interest or profits, in any, on such investments shall accumulate in
the Cash Collateral Account. Other than interest earned on such
investments, the Cash Collateral shall not bear interest. Moneys in the
Cash Collateral Account shall be applied by the Administrative Agent to
satisfy the obligations of the Company and the Subsidiary Borrowers
under the Credit Agreement.
(b) Moneys in the Cash Collateral Account shall be returned to
[the Company and [Subsidiary Borrower]] within three Business Days
after the earlier to occur of (i) the first Business Day of a month
that the Administrative Agent determines that the Cash Collateral is no
longer required pursuant to Section 2.08(c)[(ii)][(iii)] of the Credit
Agreement and (ii) a prepayment of the Loans in an amount equal to the
Cash Collateral. In such event, the Administrative Agent will execute
and deliver to [the Company and [Subsidiary Borrower]] an appropriate
release of the pledge, liens, security interests and obligations
created hereby and will release to [the Company and [Subsidiary
Borrower]] all funds then remaining in the Cash Collateral Account.
Section (4) [The Company and [subsidiary borrower]] [agrees][agree] to
reimburse and indemnify the Administrative Agent for and hold it harmless
against any loss, liability, claim, demand, cause of action, damages or
controversy at any time arising out of or in connection with performance by the
Administrative Agent of any of its duties and obligations under this Agreement,
as well as all costs and expenses, including but not limited to reasonable
attorneys' fees, incurred in the administration or preparation of this Agreement
or in defending against any claim or liability arising out of or relating to
this Agreement other than arising out of or relating to the wilful misconduct or
gross negligence of the Administrative Agent.
Section (5) [The Company and [Subsidiary Borrower]] will promptly at
[its][their] sole expense, upon reasonable request, execute and deliver all such
other documents in form and substance reasonably satisfactory to the
Administrative Agent and its legal counsel and take such other action as may be
reasonable and necessary to fully effectuate the terms and intent of this
Agreement.
Section 7. In the event that one or more of the provisions contained in
this Agreement shall, for any reason, be held invalid, illegal or unenforceable
in any respect (i) [the Company and [Subsidiary Borrower]] [agrees][agree] that
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement, and (ii) [the Company,] [ Subsidiary Borrower] and
Administrative Agent (acting on behalf of and at the direction of the Lenders)
will negotiate in good faith to amend such provision so as to be legal, valid
and enforceable.
Section 8. This Agreement may be executed in counterparts, and it shall
not be necessary that the signatures of all parties hereto be contained on any
one counterpart hereof; each counterpart shall be deemed an original, but all of
which together shall constitute one and the same instrument.
WITNESS THE EXECUTION HEREOF, as of the date first above written.
[▇▇▇▇-▇▇▇▇▇ CORPORATION
By:
Name:
Title: ]
[[SUBSIDIARY BORROWER]
By:
Name:
Title: ]
ROYAL BANK OF CANADA, as Administrative Agent
By:
Name:
Title:
[Exhibit E - Page 1 of 1]
EXHIBIT E
FORM OF
AUDITOR'S CERTIFICATE
To ▇▇▇▇-▇▇▇▇▇ Corporation:
We have examined the consolidated balance sheet of ▇▇▇▇-▇▇▇▇▇
Corporation (a Delaware corporation) and subsidiary companies as of December 31,
____ and ____, and the related consolidated statements of income, retained
earnings and cash flows for each of the three years in the period ended December
31, ____ and have issued our report thereon dated February __, ____. Our
examination was made in accordance with generally accepted auditing standards
and, accordingly, included such tests of the accounting records and such other
auditing procedures as we considered necessary in the circumstances.
We have read the Credit Agreement dated as of February 26, 1999 among
▇▇▇▇-▇▇▇▇▇ Corporation (the "Company"), the lenders parties thereto and Royal
Bank of Canada, as Administrative Agent (as amended, modified, supplemented and
restated from time to time, the "Credit Agreement"), particularly Articles V, VI
and VII. These articles contain certain covenants of the Company and the
Subsidiary Borrowers relative to certain financial conditions and describe
Events of Default relative to such covenants. We have also read the accompanying
officer's certificate prepared by your chief accounting officer described in
Section 5.01(c) of the Credit Agreement.
In connection with our examination, nothing came to our attention that
caused us to believe that you were in default with any of the provisions of
Article VII of the Credit Agreement insofar as they pertain to accounting
matters. It should be noted that our examination was not directed primarily
toward obtaining knowledge of noncompliance.
Very truly yours,