EXECUTION COPY
Exhibit 10.1
U.S. $400,000,000
FIVE YEAR CREDIT AGREEMENT
Dated as of April 14, 2004
Among
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.,
as Borrower,
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
and
THE INITIAL ISSUING BANKS NAMED HEREIN,
as Initial Issuing Banks,
and
CITIBANK, N.A.,
as Agent.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms............................................................ 1
Section 1.02. Computation of Time Periods...................................................... 32
Section 1.03. Accounting Terms................................................................. 32
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
Section 2.01. The Revolving Credit Advances and Letters of Credit.............................. 32
Section 2.02. Making the Revolving Credit Advances............................................. 33
Section 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit............... 34
Section 2.04. Fees............................................................................. 36
Section 2.05. Repayment of Revolving Credit Advances........................................... 36
Section 2.06. Interest on Revolving Credit Advances............................................ 37
Section 2.07. Interest Rate Determination...................................................... 38
Section 2.08. Optional Conversion of Revolving Credit Advances................................. 39
Section 2.09. Prepayments of Revolving Credit Advances......................................... 39
Section 2.10. Increased Costs.................................................................. 40
Section 2.11. Illegality....................................................................... 40
Section 2.12. Payments and Computations........................................................ 41
Section 2.13. Sharing of Payments, Etc......................................................... 42
Section 2.14. Evidence of Debt................................................................. 42
Section 2.15. Use of Proceeds.................................................................. 42
Section 2.16. Additional Interest on Eurodollar Rate Advances.................................. 42
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
Section 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03.................. 43
Section 3.02. Conditions Precedent to Each Revolving Credit Borrowing and Letter of
Credit Issuance.................................................................. 44
Section 3.03. Determinations Under Sections 3.01............................................... 45
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Borrower................................... 45
ARTICLE V
COVENANTS OF THE BORROWER
Section 5.01. Written Statement to Agent....................................................... 47
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Section 5.02. Commission Reports; Financial Statements......................................... 47
Section 5.03. Limitation On Restricted Payments................................................ 48
Section 5.04. Limitation On Incurrence Of Indebtedness And Issuance Of Preferred Stock......... 51
Section 5.05. Limitation On Liens.............................................................. 53
Section 5.06. Limitation On Dividend And Other Payment Restrictions Affecting
Subsidiaries..................................................................... 53
Section 5.07. Repayment Of Advances Upon A Change Of Control................................... 55
Section 5.08. Limitation On Transactions With Affiliates....................................... 55
Section 5.09. Designation Of Restricted And Unrestricted Subsidiaries.......................... 57
Section 5.10. Limitation On Sale And Leaseback Transactions.................................... 57
Section 5.11. Business Activities.............................................................. 57
Section 5.12. Payments For Consent............................................................. 58
Section 5.13. Limitation On Mergers, Consolidations And Sales Of Assets........................ 58
Section 5.14. Limit on Asset Sales............................................................. 59
Section 5.15. Covenant Termination............................................................. 62
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default................................................................ 62
Section 6.02. Notice of Default or Event of Default............................................ 64
Section 6.03. Actions in Respect of the Letters of Credit upon Default......................... 64
Section 6.04. Waiver Of Existing Defaults...................................................... 65
ARTICLE VII
THE AGENT
Section 7.01. Authorization and Action......................................................... 65
Section 7.02. Agent's Reliance, Etc............................................................ 65
Section 7.03. Citibank and Affiliates.......................................................... 66
Section 7.04. Lender Credit Decision........................................................... 66
Section 7.05. Indemnification.................................................................. 66
Section 7.06. Successor Agent.................................................................. 67
ARTICLE VIII
AMENDMENTS
Section 8.01. Amendments, Etc. with consent of Lenders......................................... 67
Section 8.02. Amendments without consent of Lenders............................................ 68
Section 8.03. Documents to Be Given to Agent................................................... 69
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ARTICLE IX
MISCELLANEOUS
Section 9.01. Notices, Etc..................................................................... 69
Section 9.02. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default.......... 69
Section 9.03. Costs and Expenses............................................................... 69
Section 9.04. Waiver of Set-off................................................................ 70
Section 9.05. Binding Effect................................................................... 70
Section 9.06. Assignments and Participations................................................... 71
Section 9.07. Confidentiality.................................................................. 73
Section 9.08. Governing Law.................................................................... 73
Section 9.09. Execution in Counterparts........................................................ 73
Section 9.10. Jurisdiction, Etc................................................................ 74
Section 9.11. Final Agreement.................................................................. 74
Section 9.12. Judgment......................................................................... 74
Section 9.13. No Liability of the Issuing Banks................................................ 75
Section 9.14. Waiver of Jury Trial............................................................. 75
Section 9.15. Officers' Certificates and Opinions of Counsel; Statements to Be
Contained Therein................................................................ 75
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
Exhibits
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Notice of Revolving Credit Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Opinion of General Counsel of the Borrower
Exhibit D-2 - Form of Opinion of Outside Counsel for the Borrower
Exhibit E - Form of Letter of Credit
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FIVE YEAR CREDIT AGREEMENT
Dated as of April 14, 2004
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC., a Delaware corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
(the "Initial Lenders") and issuers of letters of credit (the "Initial Issuing
Banks") listed on the signature pages hereof and CITIBANK, N.A. ("Citibank"), as
administrative agent and as paying agent (the "Agent") for the Lenders and
Issuing Banks (each as hereinafter defined) agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into or became a Subsidiary of such specified
Person, whether or not such Indebtedness is incurred in connection with,
or in contemplation of, such other Person merging with or into, or
becoming a Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"Advance" means a Revolving Credit Advance.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to be control. For purposes of this
definition, the terms "controlling", "controlled by" and "under common control
with" have correlative meanings.
"Agent" has the meaning specified in the preamble hereto.
"Agent's Account" means the account of the Agent maintained by the
Agent at Citibank at its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇, Attention: Bank Loan Syndications or such
other account of the Agent as is designated in writing from time to time by the
Agent to the Borrower and the Lenders for such purpose.
"Agreement" means this Five Year Credit Agreement.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance or a Fixed
Rate Advance and such Lender's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance.
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"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any assets;
provided that the sale, conveyance or other disposition of all or
substantially all of the assets of the Borrower and its Restricted
Subsidiaries taken as a whole will be governed by the provisions of
Section 5.07 or Section 5.13 hereof and not by the provisions of Section
5.14; and
(2) the issuance of Equity Interests in any of the Borrower's Restricted
Subsidiaries or the sale of Equity Interests in any of its Restricted
Subsidiaries.
Notwithstanding the preceding, the following items will not be
deemed to be Asset Sales:
(1) any single transaction or series of related transactions that
involves assets having a Fair Market Value of less than $50 million;
(2) a transfer of assets between or among the Borrower and its
Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary to the
Borrower or to another Restricted Subsidiary;
(4) the sale or lease of equipment, hydrocarbons or other inventory,
accounts receivable or other assets in the ordinary course of business;
(5) the sale or other disposition of cash or Cash Equivalents;
(6) the sale or other disposition of accounts receivable and related
assets to a Securitization Subsidiary in connection with a Permitted
Receivables Financing;
(7) Sale and Leaseback Transactions;
(8) a Restricted Payment or Permitted Investment that is permitted by
Section 5.03 hereof;
(9) dispositions in the ordinary course of business on arm's-length
terms consummated pursuant to Oil and Gas Agreements;
(10) (i) dispositions of property acquired after the date hereof required
in connection with operating contracts, joint venture agreements and lease
arrangements entered into after the date hereof in the ordinary course of
business and on arm's-length terms (which disposition is with the other
party to such agreement), the aggregate value of which shall not exceed
$50,000,000 per fiscal year and (ii) dispositions required in connection
with operating contracts, joint venture agreements and lease agreements
existing on the date hereof;
(11) any sale or other disposition of assets of the Borrower or any of
its Restricted Subsidiaries publicly announced as of the date hereof; and
(12) any trade or exchange of Oil and Gas Properties or Capital Stock in
any corporation or royalty trust in the Oil and Gas Business owned by the
Borrower or any of its Subsidiaries for Oil and Gas Properties owned or
held by another Person if the Fair Market Value of such Oil and Gas
Properties or Capital Stock traded or exchanged by the Borrower or any
such Subsidiary (including any cash or Cash Equivalents (excluding cash
exchanged with respect to the reimbursement of drilling costs or revenues
received by the parties thereto), not to exceed 15% of
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the such Fair Market Value, to be delivered to the Borrower or such
Subsidiary) is reasonably equivalent to the Fair Market Value of the Oil
and Gas Properties (together with any cash or Cash Equivalents (excluding
cash exchanged with respect to the reimbursement of drilling costs or
revenues received by the parties thereto), not to exceed 15% of such Fair
Market Value) to be received by the Borrower or such Subsidiary.
"Asset Sale Obligations" has the meaning specified in Section
5.14(c).
"Asset Sale Offer" has the meaning specified in Section 5.14(c).
"Asset Sale Reduction Amount" has the meaning specified in Section
5.14(e).
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit C hereto.
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such Sale and Leaseback Transaction including any period for which such lease
has been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such time
(assuming compliance at such time with all conditions to drawing).
"Base Rate" means an interest rate per annum in effect from time to
time, which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's base rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.06(a)(i).
"Beneficial Owner" has the meaning assigned to such term in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used in Section
13(d)(3) of the Exchange Act), such "person" will be deemed to have beneficial
ownership of all securities that such "person" has the right to acquire by
conversion or exercise of other securities, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition. The terms "Beneficially Owns" and "Beneficially Owned" have a
corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of the
corporation or any committee of such board authorized to act on its
behalf;
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(2) with respect to a partnership, the board of directors of the general
partner of the partnership or any committee of such board authorized to
act on its behalf; and
(3) with respect to any other Person, the board or committee of such
Person serving a similar function.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Borrower to have
been duly adopted or consented to by the Board of Directors of the Borrower and
to be in full force and effect, and delivered to the Agent.
"Borrower" has the meaning specified in the preamble hereto.
"Borrowing" means a Revolving Credit Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advance, on which dealings are
carried on in the London interbank market and banks are open for business in
London.
"Capital Lease Obligation" means, at the time any determination is
to be made, the amount of the liability in respect of a capital lease that would
at that time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means:
(1) Dollars;
(2) securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality of the United
States government (provided that the full faith and credit of the United
States is pledged in support of those securities) having maturities of not
more than two years from the date of acquisition;
(3) (i) demand deposits, (ii) certificates of deposit and eurodollar
time deposits with maturities of one year or less from the date of
acquisition, (iii) bankers' acceptances with maturities not exceeding 365
days and (iv) overnight bank deposits and other similar types of
investments routinely offered by commercial banks, in each case, with any
lender party to the Existing Credit Facilities or with any domestic
commercial bank or trust company having capital and surplus in excess of
$100 million;
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(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (2) and (3) above
entered into with any financial institution meeting the qualifications
specified in clause (3) above;
(5) commercial paper rated at least P-2 by Moody's or A-2 by S&P and in
each case maturing within 270 days after the date of acquisition;
(6) short-term securities, including municipal notes, variable rate
demand notes, auction rate securities, and floating rate notes rated
either P-1 or A2 by Moody's or A-1 or A by S&P and maturing within 365
days of acquisition;
(7) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or taxing
authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory,
political subdivision, taxing authority or foreign government (as the case
may be) are rated at least A by Moody's or A by S&P;
(8) money market funds the assets of which constitute primarily Cash
Equivalents of the kinds described in clauses (1) through (7) of this
definition; and
(9) deposits available for withdrawal on demand with any commercial bank
not meeting the qualifications specified in clause (3) above; provided
that all such deposits are made in the ordinary course of business, do not
remain on deposit for more than 30 consecutive days and do not exceed $50
million in the aggregate at any one time.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the
properties or assets of the Borrower and its Restricted Subsidiaries taken
as a whole to any "person" (as that term is used in Section 13(d)(3) of
the Exchange Act) other than any such transaction in which the Person or
Persons that, immediately prior to such transaction or transactions, were
the Beneficial Owners of the Voting Stock of the Borrower are the
Beneficial Owners in the aggregate of a majority in total of the total
voting power of the then outstanding Voting Stock of the transferee
"person";
(2) the adoption of a plan relating to the liquidation or dissolution of
the Borrower;
(3) the consummation of any transaction (including, without limitation,
any merger or consolidation) the result of which is that, any "person" or
"group" (as such terms are used for purposes of Sections 13(d) and 14(d)
of the Exchange Act) (other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Borrower or any of its
Subsidiaries) becomes the Beneficial Owner, directly or indirectly, of
more than 50% of the Voting Stock of the Borrower, measured by voting
power rather than number of shares;
(4) the first day on which a majority of the members of the Board of
Directors of the Borrower are not Continuing Directors; or
(5) the Borrower consolidates with, or merges with or into, any Person,
or any Person consolidates with, or merges with or into, the Borrower, in
any such event pursuant to a
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transaction in which any of the outstanding Voting Stock of the Borrower
or such other Person is converted into or exchanged for cash, securities
or other property, other than any such transaction where the Voting Stock
of the Borrower outstanding immediately prior to such transaction is
converted into or exchanged for Voting Stock (other than Disqualified
Stock) of the surviving or transferee Person constituting a majority of
the outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such issuance).
"Change of Control Payment Date" has the meaning specified in
Section 5.07(a).
"Change of Control Premium" means, in respect of a Lender, 1% of the
reduction of such Lender's Commitment pursuant to Section 5.07.
"Change of Control Reduction Amount" has the meaning specified in
Section 5.07(b).
"Citibank" has the meaning specified in the preamble hereto.
"Code" means the United States Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"Commission" means the Securities and Exchange Commission, created
under the Exchange Act, as from time to time constituted (or its successor).
"Commitment" means a Revolving Credit Commitment or a Letter of
Credit Commitment.
"Commitment Termination Date" means the earlier of (a) the date of
termination in whole of the aggregate Commitments as provided herein and (b) the
25th Business Day prior to the date specified in clause (a) of the definition of
Termination Date.
"Confidential Information" means information that the Borrower or
any of its Subsidiaries or Affiliates (or any agent, officer, director, employee
or other representative of any such Person) furnishes to the Agent or the
relevant Lender (or the relevant participant or sub-participant) in a writing
designated as confidential, but does not include any such information that is or
becomes generally available to the public or that is or becomes available to the
Agent or such Lender (or participant or sub-participant) from a source other
than the Borrower or any of its Subsidiaries or Affiliates (or any agent,
officer, director, employee or other representative of any such Person) unless
such information has become generally available to the public or such source as
a result of a breach of Section 9.07 by the Agent or a Lender.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated Cash Flow" means, with respect to any specified Person
for any period, the Consolidated Net Income of such Person for such period plus
(without duplication):
(1) provision for taxes based on income or profits of such Person and
its Restricted Subsidiaries for such period, to the extent that such
provision for taxes was deducted in computing such Consolidated Net
Income; plus
(2) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of debt issuance
costs and original issue discount (excluding any payments or
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charges arising from the acceleration of debt issuance costs and original
issue discounts associated with the repurchase of Indebtedness); non-cash
interest payments; the interest component of any deferred payment
obligations; the interest component of all payments associated with
Capital Lease Obligations; imputed interest with respect to Attributable
Debt; commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings; any
premiums, fees, discounts, expenses and losses on the sale of accounts
receivable (and any amortization thereof) in connection with a Permitted
Receivable Financing; and net of the effect of all payments made or
received pursuant to Related Interest Rate or Currency ▇▇▇▇▇▇), to the
extent that any such expense was deducted in computing such Consolidated
Net Income; plus
(3) depreciation, amortization (including amortization of goodwill and
other intangibles but excluding amortization of prepaid cash expenses that
were paid in a prior period) and other non-cash items (including asset
write-downs) (excluding any such non-cash item (including asset
write-downs) to the extent that it represents an accrual of or reserve for
cash expenses in any future period or amortization of a prepaid cash
expense that was paid in a prior period) of such Person and its
Subsidiaries for such period to the extent that such depreciation,
amortization and other non-cash items (including asset write-downs) were
deducted in computing such Consolidated Net Income; plus
(4) unrealized non-cash losses resulting from foreign currency balance
sheet adjustments required by GAAP to the extent such losses were deducted
in computing such Consolidated Net Income; plus
(5) all losses incurred as a result of Power Portfolio Disposition
Transactions, to the extent such losses were deducted in computing such
Consolidated Net Income, minus
(6) all gains as a result of Power Portfolio Disposition Transactions,
to the extent such gains were included in computing such Consolidated Net
Income; plus or minus
(7) all extraordinary, unusual or non-recurring items of gain or loss,
or revenue or expense to the extent such gains or losses or revenue or
expense were added or deducted in computing such Consolidated Net Income;
minus
(8) non-cash items (including asset write-ups) increasing such
Consolidated Net Income for such period, other than the accrual of revenue
in the ordinary course of business,
in each case, on a consolidated basis and determined (where applicable) in
accordance with GAAP.
"Consolidated Net Income" means, with respect to any specified
Person for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that:
(1) the Net Income (or loss) of any Person that is not a Restricted
Subsidiary or that is accounted for by the equity method of accounting
will be included only to the extent of the amount of dividends or
distributions paid in cash to the specified Person or a Restricted
Subsidiary of the Person;
(2) the Net Income of any Restricted Subsidiary will be excluded to the
extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at
the date of determination permitted without any prior governmental
approval
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(that has not been obtained) or, directly or indirectly, by operation of
the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders;
(3) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition will be
excluded; and
(4) the cumulative effect of a change in accounting principles will be
excluded.
"Consolidated Net Tangible Assets" means, with respect to any Person
at any date of determination, the aggregate amount of total assets included in
such Person's most recent quarterly or annual consolidated balance sheet
prepared in accordance with GAAP less applicable reserves reflected in such
balance sheet, after deducting the following amounts: (i) all current
liabilities reflected in such balance sheet, and (ii) all goodwill, trademarks,
patents, unamortized debt discounts and expenses and other like intangibles
reflected in such balance sheet.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Borrower who:
(1) was a member of such Board of Directors on the date hereof; or
(2) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or election.
"Convert", "Conversion" and "Converted" each refers to a conversion
of Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.07 or 2.08.
"Credit Facilities" means, one or more debt facilities or commercial
paper facilities, in each case between the Borrower and/or any of its Restricted
Subsidiaries and banks or other institutional lenders providing for revolving
credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables), bankers' acceptances or letters of
credit, in each case, as amended, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to time.
"Default" means any event that is, or with the passage of time or
the giving of notice or both would be, an Event of Default.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Disqualified Stock" means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder of the Capital Stock), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that
is 91 days after the date specified in clause (a) of the definition of
Termination Date. Notwithstanding the preceding sentence, any Capital Stock that
would constitute Disqualified Stock solely because the holders of the Capital
Stock have the right to require the Borrower to repurchase such Capital Stock
upon the occurrence of a Change of Control will not constitute Disqualified
Stock if the terms of such Capital Stock provide that the Borrower may not
repurchase or redeem any such Capital Stock pursuant to such provisions unless
such repurchase or redemption
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complies with Section 5.03 hereof. The amount of Disqualified Stock deemed to be
outstanding at any time for purposes of this Agreement shall be equal to the
maximum amount that the Borrower and its Restricted Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to the mandatory redemption
provisions of, such Disqualified Stock, exclusive of accrued dividends.
"Dollars" and the "$" sign each mean lawful money of the United
States of America.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite its
name on Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender, or such other office of such Lender as such Lender may from
time to time specify to the Borrower and the Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) any participant to which a Lender has sold a participation, any
sub-participant thereof or any owner of a beneficial interest in the foregoing,
if in the case of a participant or a sub-participant the Borrower consented, at
the time of such sale, to such participation or sub-participation, as
applicable, such consent not to be unreasonably withheld or delayed; or (iv) any
other Person approved by the Agent and, unless (a) an Event of Default has
occurred and is continuing at the time any assignment is effected in accordance
with Section 9.06 or (b) an assignment has occurred to a participant described
in clause (iii), the Borrower, such approval not to be unreasonably withheld or
delayed; provided, however, that neither the Borrower nor an Affiliate of the
Borrower shall qualify as an Eligible Assignee.
"Eligible Lender" means an Initial Lender, an Initial Issuing Bank
or any Eligible Assignee (other than an Eligible Assignee described in clause
(iii) of the definition of Eligible Assignee).
"Environmental Action" means any action, suit, demand, demand
letter, claim, written notice of non-compliance or written violation, notice of
liability or potential liability, investigation, proceeding, consent order or
consent agreement relating to any Environmental Law, Environmental Permit or
Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment, including, without limitation, (a) by any
governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, final judgment, decree
or written and binding judicial or agency interpretation thereof relating to
pollution or protection of the environment, health, safety or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous
Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder.
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"ERISA Affiliate" means any Person that for purposes of Section 302
and Title IV of ERISA or for purposes of Section 412 of the Code is a member of
the Borrower's controlled group, or under common control with the Borrower,
within the meaning of Section 414 of the Code.
"ERISA Event" means (a) a "reportable event" described in Section
4043 of ERISA (other than a "reportable event" (i) described in Section
4043(c)(3) of ERISA, (ii) not subject to the provision for 30-day notice to the
PBGC or (iii) that would not result in a material liability to the Borrower, any
of its Subsidiaries or any ERISA Affiliate), or (b) the incurrence of a material
liability by the Borrower, any of its Subsidiaries or any ERISA Affiliate as a
result of the withdrawal of the Borrower, any of its Subsidiaries or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA or by reason of
the provisions of Section 4064 of ERISA upon the termination of a Multiple
Employer Plan, or (c) the existence of any "accumulated funding deficiency" or
"liquidity shortfall" (within the meaning of Section 302 of ERISA or Section 412
of the Code), whether or not waived, or the filing of an application pursuant to
Section 412(e) of the Code or Section 304 of ERISA for any extension of an
amortization period, or (d) the provision or filing of a notice of intent to
terminate a Plan other than in a standard termination within the meaning of
Section 4041 of ERISA or the treatment of a Plan amendment as a distress
termination under Section 4041 of ERISA, or (e) the institution of proceedings
to terminate a Plan by the PBGC, or (f) any other event or condition which might
reasonably be expected to constitute grounds for (x) the termination of, or the
appointment of a trustee to administer, any Plan other than in a standard
termination within the meaning of Section 4041 of ERISA or (y) the imposition of
any lien on the assets of the Borrower, any of its Subsidiaries or any ERISA
Affiliate under ERISA, including as a result of the operation of Section 4069 of
ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name on Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Revolving Credit Borrowing, an interest
rate per annum equal to the rate per annum (rounded upward to the nearest whole
multiple of 1/100 of 1% per annum) appearing on Telerate Page 3750 as the London
interbank offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period (provided, that if such Interest
Period ends on the date specified in clause (a) of the definition of Termination
Date, such interest rate shall be the rate per annum appearing on the Telerate
Page for London interbank offered deposits with a term equal to the actual
number of days from the first day of such Interest Period to the date specified
in clause (a) of the definition of Termination Date (the "Final Interest
Period") or, if such Final Interest Period does not equal a term appearing on
the Telerate Page, such rate per annum shall be determined by interpolating
linearly between (i) the rate for the period appearing on the Telerate Page that
is closest to and greater than the length of such Final Interest Period and (ii)
the rate for the period appearing on the Telerate Page that is closest to and
less than the length of such Final Interest Period) or, if for any reason such
rate is not available, the average (rounded upward to the nearest whole multiple
of 1/100 of 1% per annum, if such average is not such a multiple) of the rate
per annum at which deposits in Dollars are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the first
day of such Interest Period in an amount substantially equal to such
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Revolving Credit Borrowing to be outstanding during such Interest Period and for
a period equal to such Interest Period. If Telerate Page 3750 is unavailable,
the Eurodollar Rate for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing shall be determined by
the Agent on the basis of applicable rates furnished to and received by the
Agent from the Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of Section 2.07.
"Eurodollar Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the reserve
percentage applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate on
Eurodollar Rate Advances is determined) having a term equal to such Interest
Period.
"Events of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Credit Facilities" means (1) the Secured Credit Agreement,
(2) the New RMT Loan and (3) one or more Permitted Receivables Financings (if
any) existing as of the date hereof.
"Existing Indebtedness" means Indebtedness of the Borrower and its
Restricted Subsidiaries (other than Indebtedness under the Existing Credit
Facilities or this Agreement) in existence on the date hereof, until such
amounts are repaid.
"Facility Fee" has the meaning specified in Section 2.04(a).
"Facility Fee Period End Date" means April 15 and October 15 of each
year and the date specified in clause (a) of the definition of the Termination
Date, commencing on October 15, 2004.
"Fair Market Value" means the value (after taking into account any
liabilities relating to any assets) that would be exchanged between a willing
buyer and a willing seller in a transaction in which neither party is an
Affiliate of the other, determined in good faith by the Chief Financial Officer
or other senior officer of the Borrower except as otherwise provided in this
Agreement.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding 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 of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Charge Coverage Ratio" means with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
for such period to the Fixed Charges of
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such Person for such period. In the event that the specified Person or any of
its Restricted Subsidiaries incurs, assumes, Guarantees, repays, repurchases or
redeems any Indebtedness (other than ordinary working capital borrowings) or
issues, repurchases or redeems preferred stock subsequent to the commencement of
the period for which the Fixed Charge Coverage Ratio is being calculated and on
or prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge
Coverage Ratio will be calculated giving pro forma effect to such incurrence,
assumption, Guarantee, repayment, repurchase or redemption of Indebtedness, or
such issuance, repurchase or redemption of preferred stock, and the use of the
proceeds therefrom as if the same had occurred at the beginning of the
applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(1) acquisitions that have been made by the specified Person or any of
its Restricted Subsidiaries, including through mergers, consolidations or
otherwise (including acquisitions of assets used in a Permitted Business
and Qualifying Expansion Projects) and including any related financing
transactions (including any repayment of Indebtedness), during the
four-quarter reference period or subsequent to such reference period and
on or prior to the Calculation Date will be given pro forma effect as if
they had occurred or (in the case of any Qualifying Expansion Projects)
have been completed and in service on the first day of the four-quarter
reference period, including any Consolidated Cash Flow (including interest
income reasonably anticipated by such Person to be received from Cash
Equivalents held by such Person or any of its Restricted Subsidiaries) and
any pro forma expense and cost reductions that have occurred or are
reasonably expected to occur, in the reasonable judgment of the Chief
Financial Officer or Chief Accounting Officer of the Borrower (regardless
of whether those cost savings or operating improvements could then be
reflected in pro forma financial statements in accordance with Regulation
S-X promulgated under the Securities Act or any other regulation or policy
of the Commission related thereto) but in the case of Qualifying Expansion
Projects, only to the extent of Qualifying Expansion Project Amounts;
(2) the Consolidated Cash Flow attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, will be excluded; and
(3) the Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed
of prior to the Calculation Date, will be excluded, but only to the extent
that the obligations giving rise to such Fixed Charges will not be
obligations of the specified Person or any of its Restricted Subsidiaries
following the Calculation Date.
"Fixed Charges" means, with respect to any specified Person for any
period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued, including, without
limitation, amortization of debt issuance costs and original issue
discount (excluding (a) amortization of debt issuance costs incurred prior
to the date hereof, (b) charges associated with fees and expenses,
including professional fees, incurred prior to the date hereof in
connection with the modification, or any preparation undertaken by any
Person in connection with the issuance or incurrence, of Indebtedness of
the Borrower and its Restricted Subsidiaries that occurred prior to the
date hereof and (c) payments or charges arising from the acceleration of
debt issuance costs and original issue discounts associated with the
repurchase of Indebtedness), non-cash interest payments, the interest
component of any deferred
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payment obligations, the interest component of all payments associated
with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance financings,
any premiums, fees, discounts, expenses and losses on the sale of accounts
receivable (and any amortization thereof) in connection with a Permitted
Receivables Financing, and net of the effect of all payments made or
received pursuant to Related Interest Rate or Currency ▇▇▇▇▇▇; plus
(2) the consolidated interest of such Person and its Restricted
Subsidiaries that was capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person that is
Guaranteed by the specified Person or one of its Restricted Subsidiaries
or secured by a Lien on assets of the specified Person or one of its
Restricted Subsidiaries (excluding a Lien on Capital Stock of an
Unrestricted Subsidiary of the Borrower or a Person that is not a
Subsidiary of the Borrower securing Non-Recourse Indebtedness of such
Unrestricted Subsidiary or other Person), whether or not such Guarantee or
Lien is called upon; plus
(4) all dividends, whether paid or accrued and whether or not in cash,
on any series of preferred stock of such Person or any of its Restricted
Subsidiaries, other than dividends on Equity Interests payable solely in
Equity Interests of the Borrower (other than Disqualified Stock) or to the
Borrower or a Restricted Subsidiary of the Borrower;
provided that there shall be excluded from Fixed Charges interest expense
for any period on any Non-Recourse Debt of a Project Finance Subsidiary or
an International Project Finance Subsidiary, as the case may be, in an
amount not to exceed 50% of the amount equal to the portion of the Net
Income for such period, if any, attributable to such Project Finance
Subsidiary or International Project Finance Subsidiary that is excluded
pursuant to clause (2) of the definition of Consolidated Net Income.
"Fixed Rate" means 3.57% per annum.
"Fixed Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.06(a)(iii).
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, all as in effect from time to time.
"Gas Gathering Systems" means the gas plant and those certain gas
gathering systems consisting of all equipment, assets, rights-of-way, surface
leases, contracts and related assets.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of government.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection or deposit in the ordinary course of
business), direct or indirect, in any manner including, without limitation, by
way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness.
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"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
"Hedging Obligations" means, with respect to any specified Person,
the obligations of such Person incurred under:
(1) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements;
(2) foreign exchange contracts and currency protection agreements
entered into with one or more financial institutions designed to protect
the person or entity entering into the agreement against fluctuations in
interest rates or currency exchanges rates;
(3) any commodity futures contract, commodity option or other similar
agreement or arrangement designed to protect against fluctuations in the
price of commodities used by that entity at the time; and
(4) other agreements or arrangements designed to protect such person
against fluctuations in interest rates or currency exchange rates.
"Hydrocarbons" means oil, gas, casing head gas, condensate,
distillate, liquid hydrocarbons, gaseous hydrocarbons, all products refined,
separated, settled and dehydrated therefrom and all products refined therefrom,
including, without limitation, kerosene, liquefied petroleum gas, refined
lubricating oils, diesel fuel, drip gasoline, natural gasoline, helium, sulfur
and all other minerals.
"Hydrocarbon Interests" means all rights, titles, interests and
estates now owned or hereafter acquired by the Borrower or any of its
Subsidiaries in any and all oil, gas and other liquid or gaseous hydrocarbon
properties and interests, including without limitation, mineral fee or lease
interests, production sharing agreements, concession agreements, license
agreements, service agreements, risk service agreements or similar Hydrocarbon
interests granted by an appropriate Governmental Authority, farmout, overriding
royalty and royalty interests, net profit interests, oil payments, production
payment interests and similar interests in Hydrocarbons, including any reserved
or residual interests of whatever nature.
"Indebtedness" means, with respect to any specified Person, any
obligation of such Person, whether or not contingent:
(1) for borrowed money;
(2) evidenced by bonds (but not including performance or surety bonds),
notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);
(3) for banker's acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase price
of any property, except any such balance that constitutes an accrued
expense or trade payable;
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(6) representing any Related Interest Rate or Currency ▇▇▇▇▇▇; or
(7) under Permitted Receivables Financings;
if and to the extent any of the preceding items (other than letters of credit
and Related Interest Rate or Currency ▇▇▇▇▇▇ and obligations in respect of
Permitted Receivables Financings) would appear as a liability upon a balance
sheet of the specified Person prepared in accordance with GAAP. In addition, the
term "Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the Guarantee
by the specified Person of any Indebtedness of any other Person.
Notwithstanding the foregoing, (a) Indebtedness shall not include production
payment obligations of the Borrower or any Restricted Subsidiary of the Borrower
recorded as deferred revenue or deferred liability in accordance with GAAP,
together with all related undertakings and obligations, (b) if as a result of
either a change in accounting principles or the application thereof or as a
result of any amendment, modification or supplementation to any applicable
agreement or other document relating thereto, any tolling agreement of the
Borrower or any of its Subsidiaries entered into prior to the date hereof
constitutes "Indebtedness", such change, amendment, modification or
supplementation shall not give rise to any incurrence of Indebtedness for the
purposes of this definition to the extent that such amendment, modification or
supplementation does not materially increase the obligations of the Borrower and
its Restricted Subsidiaries thereunder and (c) a Lien on Capital Stock pursuant
to clause (20) of the definition of "Permitted Liens" shall not be deemed to be
an incurrence of Indebtedness by the grantor of the Lien or an Investment in the
Person which issued such Capital Stock.
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
(2) in the case of any Permitted Receivables Financing, the net
unrecovered principal amount of the accounts receivable sold thereunder at
such date, or other similar amount representing the principal financing
amount thereof;
(3) in the case of any Related Interest Rate or Currency ▇▇▇▇▇▇, the net
amount payable if such Related Interest Rate or Currency ▇▇▇▇▇▇ is
terminated at that time due to default by such Person (after giving effect
to any contractually permitted set-off);
(4) in respect of Indebtedness of other Persons secured by a Lien on the
assets of the specified Person or on any other Person, the lesser of:
(a) the Fair Market Value of such asset at such date of
determination, and
(b) the amount of such Indebtedness of such other Persons; and
(5) the principal amount of the Indebtedness in the case of any other
Indebtedness.
"Indemnified Costs" has the meaning specified in Section 7.05.
"Initial Issuing Banks" has the meaning specified in the preamble
hereto.
"Initial Lenders" has the meaning specified in the preamble hereto.
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"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Revolving Credit Borrowing and subject to Section 2.07(c), the
period commencing on the date of such Eurodollar Rate Advance or the date of the
Conversion of any Base Rate Advance into such Eurodollar Rate Advance and ending
on the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending on the last day of
the period so selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six months, as
the Borrower may, upon notice received by the Agent not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the first day of such
Interest Period, select; provided, however, that:
(a) the duration of any Interest Period that commences before the
Termination Date and would otherwise end after the date specified in
clause (a) of the definition of Termination Date shall end on such date
specified in clause (a) of the definition of Termination Date and the
Eurodollar Rate for such Interest Period shall be determined on the basis
of the actual number of days in such Interest Period;
(b) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same Revolving Credit Borrowing shall
be of the same duration;
(c) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day;
provided, however, that, if such extension would cause the last day of
such Interest Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next preceding
Business Day;
(d) the duration of any Interest Period that would otherwise end
after the date a Eurodollar Rate Advance is Converted into a Fixed Rate
Advance shall end on the date of such Conversion; and
(e) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in
such Interest Period, such Interest Period shall end on the last Business
Day of such succeeding calendar month.
"International Project Finance Subsidiary" means (a) WilPro Energy
Services (El Furrial) Limited, Apco Argentina Inc., and WilPro Energy Services
(PIGAP II) Limited, (b) any Restricted Subsidiary of the Borrower created after
the date hereof in order to acquire, construct, develop and/or operate fixed
assets and related assets to be used in a Specified International Project, in
each case:
(1) which is specified in clause (a) above or designated as an
International Project Finance Subsidiary by the Borrower's Board of
Directors, the Chief Financial Officer or any other senior financial
officer of the Borrower,
(2) the Indebtedness of which (and of its Subsidiaries) is solely
Non-Recourse Indebtedness, and
(3) all Investments made by the Borrower or its Restricted Subsidiaries
in such International Project Finance Subsidiary and its Subsidiaries on
or prior to the date of designation, measured on the date each such
Investment was made and without giving effect to subsequent changes in
value, (less the amount of cash return on such Investments received by the
Borrower or its other
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Restricted Subsidiaries on or prior to such date) are deemed to be made at
the time of such designation and qualify at the time of such designation
as Specified Project Finance Investments;
and (c) each Restricted Subsidiary of the Borrower that is a Subsidiary of such
International Project Finance Subsidiary.
"Investment Grade Date" has the meaning set forth in Section 5.15
hereof.
"Investment Grade Rating" means a rating equal to or higher than
Baa3 by ▇▇▇▇▇'▇ (or its equivalent under any successor rating categories of
▇▇▇▇▇'▇) and BBB- by S&P (or its equivalent under any successor rating
categories of S&P).
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans (including Guarantees (other than Guarantees of Indebtedness
of the Borrower or any of its Restricted Subsidiaries to the extent permitted by
Section 5.04 hereof)), advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the ordinary
course of business and excluding trade payables of the Borrower and its
Subsidiaries arising in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP; provided that
all transfers of assets (other than immaterial assets and goods and services
provided in the ordinary course of business on arms' length terms or goods and
services acquired pursuant to a construction or similar contract in which the
Borrower or another Restricted Subsidiary is acting as contractor or in a
similar capacity for a project entered into on arms' length terms in the
ordinary course of business) by the Borrower and its other Restricted
Subsidiaries to a Project Finance Subsidiary or an International Project Finance
Subsidiary on or after the date hereof will be deemed to be an Investment by the
Borrower or such Restricted Subsidiary in an amount equal to the Fair Market
Value thereof. If the Borrower or any Subsidiary of the Borrower sells or
otherwise disposes of any Equity Interests of any direct or indirect Subsidiary
of the Borrower such that, after giving effect to any such sale or disposition,
such Person is no longer a Subsidiary of the Borrower, the Borrower will be
deemed to have made an Investment on the date of any such sale or disposition
equal to the Fair Market Value of the Equity Interests of such Subsidiary not
sold or disposed of in an amount determined as provided in paragraph (c) of
Section 5.03 hereof. The acquisition by the Borrower or any Subsidiary of the
Borrower of a Person that holds an Investment in a third Person will be deemed
to be an Investment by the Borrower or such Subsidiary in such third Person in
an amount equal to the Fair Market Value of the Investment held by the acquired
Person in such third Person in an amount determined as provided in paragraph (c)
of Section 5.03 hereof. Except as otherwise provided in this Agreement, the
amount of an Investment shall be its Fair Market Value at the time the
Investment is made and without giving effect to subsequent changes in value.
"Issuing Bank" means each Initial Issuing Bank or any Eligible
Assignee to which a portion of the Letter of Credit Commitment hereunder has
been assigned pursuant to Section 9.06 so long as such Eligible Assignee
expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as an Issuing Bank and notifies the Agent of its Applicable Lending Office
(which information shall be recorded by the Agent in the Register), for so long
as such Initial Issuing Bank or Eligible Assignee, as the case may be, shall
have a Letter of Credit Commitment.
"L/C Related Documents" has the meaning specified in Section
2.05(b)(i).
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"Lenders" means, collectively, the Initial Lenders, the Initial
Issuing Banks and each Person that shall become a party hereto pursuant to
Section 9.06.
"Letter of Credit" has the meaning specified in Section 2.01(b).
"Letter of Credit Agreement" has the meaning specified in Section
2.03(a).
"Letter of Credit Commitment" means, with respect to each Initial
Issuing Bank, the Dollar amount set forth opposite such Initial Issuing Bank's
name on the signature pages hereto under the caption "Letter of Credit
Commitment" or, if such Issuing Bank has entered into one or more Assignment and
Acceptances, the Dollar amount set forth for such Issuing Bank in the Register
maintained by the Agent pursuant to Section 9.06(d) as such Issuing Bank's
"Letter of Credit Commitment", in either case as such Dollar amount is reduced
pursuant to Sections 5.07 or 5.14.
"Letter of Credit Facility" means, at any time, an amount equal to
the least of (a) the aggregate amount of the Issuing Banks' Letter of Credit
Commitments at such time, (b) $400,000,000 and (c) the aggregate amount of the
Revolving Credit Commitments.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement or any lease
in the nature thereof.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole, (b) the rights and remedies of the Agent or any Lender or any
other Person under this Agreement, any Note or in connection with any Letter of
Credit or (c) the ability of the Borrower to perform its obligations under this
Agreement, any Note or in connection with any Letter of Credit.
"Material Indebtedness" means Indebtedness of the Borrower or its
Restricted Subsidiaries for borrowed money in an aggregate principal amount in
excess of $100,000,000 (at the applicable date of determination thereof).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Multiemployer Plan" means a "multiemployer plan," as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any of its Subsidiaries or
any ERISA Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an obligation
to make contributions.
"Multiple Employer Plan" means an employee benefit plan, other than
a Multiemployer Plan, subject to Title IV of ERISA to which the Borrower, any
Subsidiary or any ERISA Affiliate and more than one employer other than the
Borrower, any Subsidiary or an ERISA Affiliate is making or accruing an
obligation to make contributions, has within any of the preceding five plan
years made or accrued an obligation to make contributions or, in the event that
any such plan has been terminated, to
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which the Borrower, any Subsidiary or any ERISA Affiliate made or accrued an
obligation to make contributions during any of the five plan years preceding the
date of termination of such plan.
"Net Income" means, with respect to any specified Person, the net
income (loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however:
(1) any gain or loss, together with any related provision for taxes on
such gain or loss, realized in connection with (a) any Asset Sale or (b)
the disposition of any securities by such Person or any of its
Subsidiaries or the extinguishment of any Indebtedness of such Person or
any of its Subsidiaries;
(2) any extraordinary gain or loss, together with any related provision
for taxes on such extraordinary gain or loss; and
(3) non-cash asset write-downs or write-ups with respect to reserves in
respect of Oil and Gas Properties.
"Net Proceeds" means the aggregate cash proceeds received by the
Borrower or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of,
in each case as reasonably established by the Borrower in good faith, (a) the
costs or expenses (including, without limitation, severance costs) relating to
such Asset Sale, including, without limitation, legal, accounting and investment
banking fees, and sales commissions, and any relocation expenses incurred as a
result of the Asset Sale, taxes paid or payable as a result of the Asset Sale,
in each case, after taking into account any available tax credits or deductions
and any tax sharing arrangements, (b) amounts required to be applied to the
repayment of Indebtedness secured by a Lien on the asset or assets that were the
subject of such Asset Sale or which must by its terms, or in order to obtain a
necessary consent to such Asset Sale or by applicable law, be repaid out of the
proceeds of such Asset Sale and (c) any reserve or provision for adjustment in
respect of the sale price of such asset or assets or costs of such Asset Sale.
"New RMT Loan" means the Term Loan Agreement dated as of May 30,
2003 among ▇▇▇▇▇▇▇▇ Production Holdings LLC, ▇▇▇▇▇▇▇▇ Production RMT Company, as
borrower, the "Lenders", "Arrangers", "Co-Syndication Agents" and "Documentation
Agent" referred to therein, and ▇▇▇▇▇▇ Commercial Paper Inc., as Administrative
Agent, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and as the same may
further be amended, modified, renewed, refunded, replaced or refinanced from
time to time.
"Non-Recourse Indebtedness" means Indebtedness:
(1) for which neither the Borrower nor any Restricted Subsidiary of the
Borrower (other than (i) the relevant Project Finance Subsidiary or
International Project Finance Subsidiary, in the case of Indebtedness
satisfying the requirements of clause (3) of this definition and (ii) any
pledge of Capital Stock of the relevant Project Finance Subsidiary or
International Project Finance Subsidiary, or any other Lien permitted by
clause (20) of the definition of Permitted Liens) is liable as borrower or
guarantor (including pursuant to any agreement to purchase or pay, or
advance or supply funds for the purchase or payment of, such Indebtedness,
or to keep-well, maintain financial statement conditions of or purchase
assets, goods, securities or services of such Project Finance Subsidiary
or International Project Finance Subsidiary, as the case may be, for
purposes of assuring payment in whole or in part of such Indebtedness or
interest thereon, other than any contract entered into in the ordinary
course of business on arms' length terms so long as
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the obligations of the Borrower and its Restricted Subsidiaries under all
such contracts related to any such Indebtedness do not represent a
majority of the contractual obligations related to such Indebtedness);
(2) no default with respect to which would permit (upon notice, lapse of
time or otherwise) any holder of other Material Indebtedness (other than
of the relevant Project Finance Subsidiary or International Project
Finance Subsidiary) other than any Indebtedness outstanding on the date
hereof of the Borrower or any Restricted Subsidiary of the Borrower to
declare a default on that other Material Indebtedness other than any
Indebtedness outstanding on the date hereof or cause payment thereon to be
accelerated or payable prior to its Stated Maturity;
(3) in the case of Indebtedness of a Project Finance Subsidiary or
International Project Finance Subsidiary,
(a) which is incurred by such Project Finance Subsidiary or
International Project Finance Subsidiary, as the case may be, in order to
(i) finance the costs associated with the acquisition, construction,
development and operation of fixed assets and related assets by such
Project Finance Subsidiary or International Project Finance Subsidiary, as
the case may be, from a Person other than the Borrower and its Restricted
Subsidiaries (other than immaterial assets, goods and services provided in
the ordinary course of business on arms' length terms or goods and
services acquired pursuant to a construction or similar contract in which
the Borrower or another Restricted Subsidiary is acting as contractor or
in a similar capacity for a project entered into on arms' length terms in
the ordinary course of business) or (ii) refinance in whole or in part
Indebtedness satisfying the requirements of clause (i), Indebtedness
incurred to refinance such Indebtedness or Specified Project Finance
Investments in such Project Finance Subsidiary or International Project
Finance Subsidiary, as the case may be, and
(b) for which the lenders or holders thereof agree that they will
look for payment solely to (i) the assets (and income and proceeds
therefrom) acquired, developed or constructed with the proceeds of such
Indebtedness or Specified Project Finance Investments in such Project
Finance Subsidiary or International Project Finance Subsidiary, as the
case may be or (ii) Capital Stock of such Project Finance Subsidiary or
International Project Finance Subsidiary, as the case may be.
Notwithstanding anything to the contrary above, the Indebtedness of
any International Project Finance Subsidiary specified in clause (a) of the
definition thereof, or any Subsidiary thereof, outstanding on the date hereof
pursuant to the terms in effect on the date hereof (or any subsequent amendment
thereto that does not materially increase the actual or potential liability of
the Borrower or any Restricted Subsidiary (except such International Project
Finance Subsidiary or its Subsidiaries)), shall be deemed to be "Non-Recourse
Indebtedness".
"Note" means a Revolving Credit Note.
"Notice Lenders" means at any time Lenders owed at least 25% in
interest of the then aggregate unpaid principal amount of the Revolving Credit
Advances owing to Lenders, or, if no such principal amount is then outstanding,
Lenders having at least 25% in interest of the Revolving Credit Commitments.
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning specified in
Section 2.02(a).
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"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officers' Certificate" means a certificate signed by any of the
Chairman of the Board, the President, a Vice President, the Controller, the
Treasurer of the Borrower or the Assistant Treasurer and delivered by or on
behalf of the Borrower. Each such certificate shall include the statements
provided for in Section 9.15, unless otherwise provided.
"Oil and Gas Agreements" means operating agreements, processing
agreements, farm-out and farm-in agreements, development agreements, area of
mutual interest agreements, contracts for the gathering and/or transportation of
oil and natural gas, unitization agreements, pooling arrangements, joint bidding
agreements, joint venture agreements, participation agreements, surface use
agreements, service contracts, tax credit agreements, leases and subleases of
Oil and Gas Properties or other similar customary agreements, transactions,
properties, interests or arrangements, howsoever designated, in each case made
or entered into in the ordinary course of business as conducted by the Borrower
and its Restricted Subsidiaries.
"Oil and Gas Business" means (a) the acquisition, exploration,
exploitation, development, operation, management and disposition of interests in
Hydrocarbon Interests and Hydrocarbons; (b) gathering, marketing, treating,
processing, storage, selling and transporting of any production from such
interests or Hydrocarbon Interests, including, without limitation, the marketing
of Hydrocarbons obtained from unrelated Persons; (c) any business relating to or
arising from exploration for or development, production, treatment, processing,
storage, transportation or marketing of oil, gas and other minerals and products
produced in association therewith; and (d) any activity that is ancillary or
necessary or desirable to facilitate the activities described in clauses (a)
through (c) of this definition.
"Oil and Gas Properties" means (a) Hydrocarbon Interests; (b) the
Property now or hereafter pooled or unitized with Hydrocarbon Interests; (c) all
presently existing or future unitization, pooling agreements and declarations of
pooled units and the units created thereby (including, without limitation, all
units created under orders, regulations and rules of any Governmental Authority)
which may affect all or any portion of the Hydrocarbon Interests; (d) all
operating agreements, contracts and other agreements which relate to any of the
Hydrocarbon Interests or the production, sale, purchase, exchange or processing
of Hydrocarbons from or attributable to such Hydrocarbon Interest; (e) all
Hydrocarbons in and under and which may be produced and saved or attributable to
the Hydrocarbon Interests, the lands covered thereby and all oil in tanks and
all rents, issues, profits, proceeds, products, revenues and other income from
or attributable to the Hydrocarbon Interests; and (f) all tenements,
hereditaments, appurtenances and Property in any manner appertaining, belonging,
affixed or incidental to the Hydrocarbon Interests, Property, Gas Gathering
System, rights, titles, interests and estates described or referred to above,
including, without limitation, any and all Property, now owned or hereinafter
acquired and situated upon, used, held for use or useful in connection with the
operating, working or development of any of such Hydrocarbon Interests or
Property (excluding drilling rigs, automotive equipment or other personal
property which may be on such premises for the purpose of drilling a well or for
other similar temporary uses) and including any and all oil ▇▇▇▇▇, gas ▇▇▇▇▇,
injection ▇▇▇▇▇ or other ▇▇▇▇▇, buildings, structures, fuel separators, liquid
extraction plants, plant compressors, pumps, pumping units, field gathering
systems, tanks and tank batteries, fixtures, valves, fittings, machinery and
parts, engines, boilers, meters, apparatus, equipment, appliances, tools,
implements, cables, wires, towers, casing, tubing and rods, surface leases,
rights-of-way, easements and servitudes together with all additions,
substitutions, replacements, accessions and attachments to any and all of the
foregoing.
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"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Borrower and who shall be
reasonably satisfactory to the Agent. Each such opinion shall include the
applicable statements, if any, provided for in Section 9.15, unless otherwise
provided.
"Original Currency" has the meaning specified in Section 9.12(a).
"Other Currency" has the meaning specified in Section 9.12(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Business" means the lines of business conducted by the
Borrower and its Restricted Subsidiaries on the date hereof and any business
incidental or reasonably related thereto or which is a reasonable extension
thereof and any business of providing services and products in the energy market
and any business incidental or reasonably related thereto.
"Permitted Investments" means:
(1) any Investment in the Borrower or in a Restricted Subsidiary of the
Borrower other than a Project Finance Subsidiary or an International
Project Finance Subsidiary;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Borrower or any Subsidiary of the Borrower in
a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the Borrower,
or
(b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Borrower or a Restricted Subsidiary of the Borrower;
(4) any Investment made as a result of the receipt of non-cash
consideration from any Asset Sale that was made pursuant to and in
compliance with Section 5.14 hereof, or any non-cash consideration
received in a transaction that was excluded from the definition of Asset
Sale pursuant to clause (1) or (4) (for the sale or lease of equipment)
pursuant to the second paragraph of such definition;
(5) any Investment in any Person to the extent in exchange for the
issuance of Equity Interests (other than Disqualified Stock) of the
Borrower;
(6) any purchase or other acquisition of senior debt of the Borrower or
any Restricted Subsidiary (other than Indebtedness of the Borrower that is
subordinated in right of payment to the Indebtedness created by this
Agreement);
(7) any Investments received in compromise of obligations of trade
creditors or customers that were incurred in the ordinary course of
business, including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of any trade creditor or
customer;
(8) Hedging Obligations incurred not for speculative purposes;
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(9) Investments in a Securitization Subsidiary that are necessary or
desirable to effect any Permitted Receivables Financing;
(10) Investments by the Borrower or any Restricted Subsidiary in the
Discovery, Gulfstream, Aux Sable, Accroven, Cardinal, Pine Needle, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Crossing Project and other similar joint ventures existing on the
date hereof in an aggregate amount for each such joint venture (exclusive
of equity Investments therein existing on the date hereof) not in excess
of the Borrower's direct or indirect equity percentage interest of the
total Indebtedness of such joint venture on the date hereof, together
with, in the case of Gulfstream, such percentage interest of additional
Indebtedness incurred in accordance with expansions thereof that have been
publicly announced prior to the date hereof;
(11) Investments by the Borrower or any Restricted Subsidiary in joint
ventures and in Project Finance Subsidiaries operating primarily in a
Permitted Business in an amount (measured on the date each such Investment
was made and without giving effect to subsequent changes in value) which,
taken together with the amount of all other Investments made after the
date hereof in reliance on this clause (11), does not exceed 10% of
Consolidated Net Tangible Assets at any one time outstanding;
(12) reclassification of any Investment initially by the Borrower or any
Restricted Subsidiary in the form of equity as a loan or advance, and
reclassification of any Investment initially made in the form of a loan or
advance as equity; provided in each case that the amount of such
Investment is not increased thereby;
(13) Investments in any Person by the Borrower or any Restricted
Subsidiary after the date hereof in reliance on this clause (13) in an
amount (measured on the date each such Investment was made and without
giving effect to subsequent changes in value) which, taken together with
all other Investments made pursuant to this clause (13), does not exceed
$150 million at any one time outstanding;
(14) loans and advances to employees in the ordinary course of business
of the Borrower or its Restricted Subsidiaries as presently conducted,
when taken together with all other loans and advances made pursuant to
this clause that are at the time outstanding not to exceed $10 million;
(15) Investments made by the Borrower or any Restricted Subsidiary of the
Borrower in International Project Finance Subsidiaries for the purposes of
any Specified International Projects in accordance with applicable laws in
an amount (measured on the date each such Investment was made and without
giving effect to subsequent changes in value) which, taken together with
all other Investments made after the date hereof in reliance on this
clause (15), does not exceed $150 million plus the amount of cash return
on Investments in such Specified International Projects received by the
Borrower and its Restricted Subsidiaries since the date hereof; and
(16) Investments by a Project Finance Subsidiary and its Subsidiaries or
an International Project Finance Subsidiary and its Subsidiaries in each
other.
"Permitted Liens" means:
(1) Liens of the Borrower and any Restricted Subsidiary securing any
Credit Facility to the extent permitted by the terms of this Agreement to
be incurred and all Obligations and Hedging Obligations relating to such
Indebtedness (but excluding any Credit Facility with any Subsidiary or
other Affiliate of the Borrower, as lender);
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(2) Liens (i) in favor of the Borrower, or (ii) on property of a
Restricted Subsidiary in favor of another Restricted Subsidiary;
(3) Liens on property of a Person existing at the time such Person is
merged with or into or consolidated with or acquired by the Borrower or
any Restricted Subsidiary of the Borrower or renewals or replacement of
such Liens in connection with the incurrence of Permitted Refinancing
Indebtedness to refinance Indebtedness secured by such Liens; provided
that such Liens were in existence prior to the contemplation of such
merger, consolidation or acquisition and do not extend to any assets other
than those of the Person merged into or consolidated with the Borrower or
the Restricted Subsidiary;
(4) Liens on property existing at the time of acquisition of the
property by the Borrower or any Restricted Subsidiary of the Borrower or
renewals or replacement of such Liens in connection with the incurrence of
Permitted Refinancing Indebtedness to refinance Indebtedness secured by
such Liens; provided that such Liens were in existence prior to the
contemplation of such acquisition;
(5) Liens to secure the performance of tenders, bids, statutory
obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business;
(6) Liens to secure Indebtedness (including Capital Lease Obligations)
(x) permitted by clause (iv) of paragraph (b) of Section 5.04 hereof
covering only the assets acquired with such Indebtedness or similar assets
acquired in connection with the incurrence of such Permitted Refinancing
Indebtedness or (y) permitted by clause (v) of such paragraph, to the
extent that such Permitted Refinancing Indebtedness is in respect of
Indebtedness initially incurred under clause (4) (whether or not
subsequently incurred as Permitted Refinancing Indebtedness);
(7) Liens existing on the date hereof;
(8) Liens for taxes, assessments or governmental charges or claims that
are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded;
provided that any reserve or other appropriate provision as is required in
conformity with GAAP has been made therefor;
(9) Liens on assets of Unrestricted Subsidiaries;
(10) Liens on accounts receivable and related assets and proceeds thereof
arising in connection with a Permitted Receivables Financing;
(11) Liens arising under Oil and Gas Agreements;
(12) any mortgage which is payable, both with respect to principal and
interest, solely out of the proceeds of oil, gas, coal or other minerals
or timber to be produced from the property subject thereto and to be sold
or delivered by the Borrower or one of its Restricted Subsidiaries,
including any interest of the character commonly referred to as a
"production payment";
(13) any mortgage created or assumed by a Restricted Subsidiary on oil,
gas, coal or other mineral or timber property, owned or leased by a
Restricted Subsidiary to secure loans to such Subsidiary for the purposes
of developing such properties, including any interest of the character
commonly referred to as a "production payment"; provided, however, that
neither the Borrower
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nor any other Subsidiary shall assume or guarantee such loans or otherwise
be liable in respect thereto;
(14) Liens granted in cash collateral to support the issuance of letters
of credit in an aggregate face amount not exceeding $100 million;
(15) Liens pursuant to master netting agreements entered into in the
ordinary course of business in connection with Hedging Obligations;
(16) Liens with respect to Indebtedness and other obligations that at the
time of incurrence do not exceed in the aggregate for all such obligations
under this clause (16) 15% of the Consolidated Net Tangible Assets of the
Borrower;
(17) Liens with respect to Permitted Refinancing Indebtedness incurred to
refinance any Indebtedness of the Borrower or its Restricted Subsidiaries
which has been secured by Liens permitted under Section 5.05; provided
that such Liens do not extend to any property other than the property
securing the Indebtedness refinanced by the Permitted Refinancing
Indebtedness;
(18) Liens securing Non-Recourse Indebtedness of a Project Finance
Subsidiary on the assets (and the income and proceeds therefrom) acquired,
developed, operated and/or constructed with the proceeds of (a) such
Non-Recourse Indebtedness or Specified Project Finance Investments in such
Project Finance Subsidiary or (b) Non-Recourse Indebtedness or Investments
referred to in clause (a) refinanced in whole or in part by such
Non-Recourse Indebtedness;
(19) Liens securing Non-Recourse Indebtedness of any International
Project Finance Subsidiary incurred in connection with any Specified
International Project on the assets (and the income and proceeds
therefrom) acquired, developed, operated and/or constructed with the
proceeds of (a) such Non-Recourse Indebtedness or Specified Project
Finance Investments in such International Project Finance Subsidiary or
(b) Non-Recourse Indebtedness or Investments referred to in clause (a)
refinanced in whole or in part by such Non-Recourse Indebtedness; and
(20) Liens on the Investments held by the Borrower and its Restricted
Subsidiaries in a joint venture (other than a Restricted Subsidiary of the
Borrower) securing Indebtedness and other obligations of such joint
venture, or a Project Finance Subsidiary, Unrestricted Subsidiary or an
International Project Finance Subsidiary securing Non-Recourse
Indebtedness of such Project Finance Subsidiary, Unrestricted Subsidiary
or International Project Finance Subsidiary, as the case may be.
"Permitted Receivables Financing" means any receivables financing
facility or arrangement pursuant to which a Securitization Subsidiary purchases
or otherwise acquires accounts receivable of the Borrower or any Restricted
Subsidiaries and enters into a third party financing thereof on terms that the
Board of Directors, the Chief Financial Officer or any other senior financial
officer of the Borrower has concluded are customary and market terms fair to the
Borrower and its Restricted Subsidiaries.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Borrower or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Borrower or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that:
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(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount
(or accreted value, if applicable) of the Indebtedness extended,
refinanced, renewed, replaced, defeased or refunded (plus all accrued
interest on the Indebtedness and the amount of all expenses and premiums
incurred in connection therewith) and any premiums paid on the
Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded;
(2) such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to this
Agreement, such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and is subordinated in right
of payment to, this Agreement on terms at least as favorable to the
Lenders, taken as a whole, as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and
(4) such Indebtedness is incurred by none of the Borrower or any of its
Subsidiaries other than the Borrower and the Subsidiaries who are the
obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"Plan" means an employee benefit plan, other than a Multiemployer
Plan, (a) which is maintained for employees of the Borrower, any Subsidiary or
any ERISA Affiliate and which is subject to Section 302 or Title IV of ERISA or
Section 412 of the Code or (b) with respect to which the Borrower, any
Subsidiary or any ERISA Affiliate could be subjected to any liability under
Section 302 or Title IV of ERISA (including Section 4069 of ERISA) or Section
412 of the Code. Without limitation on the foregoing, the term "Plan" includes
any employee benefit plan for which the Borrower or any of its Subsidiaries or
any ERISA Affiliate may have any liability arising from the joint and several
liability provisions of Section 302 or Title IV of ERISA or Section 412 of the
Code or from the maintenance or participation in any such plan by the Borrower
or any of its Subsidiaries or any ERISA Affiliate, as a result of the Borrower
or any of its Subsidiaries or any ERISA Affiliate being the successor in
interest to any person maintaining or participating in any such plan or
otherwise.
"Power Portfolio Disposition Transaction" means the sale, buyout,
liquidation or material restructuring, not in the ordinary course of business,
of a tolling or full requirements structured transaction in existence on the
date hereof, and associated Hedging Obligations; provided that in the good faith
belief of an executive officer of the Borrower, such sale, buyout, liquidation
or restructuring is consistent with the effort to reduce the risk profile and
overall financial commitment of the Borrower's Power business.
"Project Finance Subsidiary" means (a) any Restricted Subsidiary
(other than an International Project Finance Subsidiary) of the Borrower created
after the date hereof in order to acquire, construct, develop and/or operate
fixed assets and related assets to be used in a Permitted Business:
(1) which is designated as a Project Finance Subsidiary by the
Borrower's Board of
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Directors, the Chief Financial Officer or any other senior financial
officer of the Borrower,
(2) the Indebtedness of which (and of its Subsidiaries) is solely
Non-Recourse Indebtedness, and
(3) all Investments by the Borrower or its Restricted Subsidiaries in
such Project Finance Subsidiary and its Subsidiaries on or prior to the
date of such designation, measured on the date each such Investment was
made and without giving effect to subsequent changes in value, (less the
amount of cash return on such Investments received by the Borrower or its
other Restricted Subsidiaries on or prior to such date) are deemed to be
made at the time of such designation and qualify at the time of such
designation as Specified Project Finance Investments;
and (b) each Restricted Subsidiary of the Borrower that is a Subsidiary of such
Project Finance Subsidiary.
"Property" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible,
including, without limitation, Capital Stock and Hydrocarbon Interests.
"Pro Rata Share" of any amount means, with respect to any Lender at
any time, the product of (a) a fraction the numerator of which is the amount of
such Lender's Revolving Credit Commitment at such time (or, if the Revolving
Credit Commitments shall have been reduced in full, such Lender's Revolving
Credit Commitment as in effect immediately prior to such reduction) and the
denominator of which is the aggregate amount of all Revolving Credit Commitments
at such time (or, if the Revolving Credit Commitments shall have been reduced in
full, the aggregate amount of all Revolving Credit Commitments as in effect
immediately prior to such reduction) and (b) such amount.
"Qualifying Expansion Project" means any capital expansion project
that has increased or will increase the physical capacity of the pipeline system
of the Borrower and its Restricted Subsidiaries; provided that such project has
been completed and the assets are in service at, or the Borrower reasonably
believes that the in-service date of the project will be within eighteen months
after, the Calculation Date.
"Qualifying Expansion Project Amounts" means with respect to any
calculation of pro forma amounts under the Fixed Charge Coverage Ratio
additional revenues (if any) and related expenses for any Qualifying Expansion
Project for the portion of the four-quarter period prior to the in-service date
of such Qualifying Expansion Project (the "Estimation Period"); provided that
revenues and related expenses anticipated from any Qualifying Expansion Project
during any Estimation Period shall be included in such calculation only to the
extent (1) of the portion of the capacity of such Qualifying Expansion Project
that is committed under a long-term firm transportation contract on customary
terms (as determined in good faith by the Borrower) with a counterparty that has
an Investment Grade Rating of its long-term debt from at least one of S&P and
▇▇▇▇▇'▇ and (2) the aggregate amount of Qualifying Expansion Project Amounts for
all Qualifying Expansion Projects included in any such calculation does not
exceed 25% of the aggregate revenues of the Borrower and its Restricted
Subsidiaries for such period, determined for this purpose on a pro forma basis
but before inclusion of any Qualifying Expansion Project Amounts.
"Rating Agency" means each of S&P and ▇▇▇▇▇'▇, or if S&P or ▇▇▇▇▇'▇
or both shall not make a rating on the Specified Security publicly available, a
nationally recognized statistical rating agency or agencies, as the case may be,
selected by the Borrower, which shall be substituted for S&P or ▇▇▇▇▇'▇, or
both, as the case may be.
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"Reference Banks" means Citibank, Deutsche Bank AG, ▇.▇. ▇▇▇▇▇▇
▇▇▇▇▇ & Co. and Bank of America, N.A.
"Register" has the meaning specified in Section 9.06(d).
"Related Interest Rate or Currency Hedge" means any Hedging
Obligation entered into by the Borrower and/or any of its Restricted
Subsidiaries of the type referred to in items (1) or (2) of the definition
thereof, and provided that such Hedging Obligation was entered into with respect
to other Indebtedness of the Borrower and/or its Restricted Subsidiaries to
protect against fluctuations in interest rates or currency exchange rates with
respect to such other Indebtedness.
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of the
Revolving Credit Advances owing to Lenders, or, if no such principal amount is
then outstanding, Lenders having at least a majority in interest of the
Revolving Credit Commitments.
"Restricted Event" has the meaning specified in Section 8.01.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Revolving Credit Advance" means an advance by a Lender to the
Borrower (i) as part of a Revolving Credit Borrowing, (ii) in connection with a
Letter of Credit or (iii) in connection with the Conversion of a Eurodollar Rate
Advance or a Base Rate Advance into a Fixed Rate Advance, and refers to a Base
Rate Advance, a Eurodollar Rate Advance or a Fixed Rate Advance (each of which
shall be a "Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of the
Lenders pursuant to Section 2.01.
"Revolving Credit Commitment" means, with respect to any Lender at
any time, (a) the Dollar amount set forth opposite such Lender's name on the
signature pages hereto under the caption "Revolving Credit Commitment" or (b) if
such Lender has entered into one or more Assignment and Acceptances, the Dollar
amount set forth for such Lender in the Register maintained by the Agent
pursuant to Section 9.06(d) as such Lender's "Revolving Credit Commitment", in
either case as such Dollar amount is reduced pursuant to Sections 5.07 or 5.14.
"Revolving Credit Note" means a promissory note of the Borrower
payable to the order of any Lender, delivered pursuant to a request made under
Section 2.14 in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from the
Revolving Credit Advances made by such Lender.
"S&P" means Standard and Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., and its successors.
"Sale and Leaseback Transaction" means any arrangement with any
Person (other than the Borrower or a Restricted Subsidiary), or to which any
such Person is a party, providing for the leasing that would at such time be
required to be capitalized on a balance sheet in accordance with GAAP, to the
Borrower or a Restricted Subsidiary of any property or asset which has been or
is to be sold or transferred
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by the Borrower or such Restricted Subsidiary to such Person or to any other
Person (other than the Borrower or a Restricted Subsidiary), to which funds have
been or are to be advanced by such Person.
"Secured Credit Agreement" means the Credit Agreement dated June 6,
2003 by and among the Borrower, Northwest Pipeline Corporation and
Transcontinental Gas Pipe Line Corporation as Borrowers and the banks named
therein as Banks, the "Issuing Banks", "Co-Lead Arrangers" and other parties
referred to therein, and Citicorp USA, Inc., as Agent and Collateral Agent,
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended,
modified, renewed, refunded, replaced or refinanced from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitization Subsidiary" means a Subsidiary of the Borrower
(1) that is designated a "Securitization Subsidiary" by the Borrower's
Board of Directors, the Chief Financial Officer or any other senior
financial officer of the Borrower,
(2) that does not engage in, and whose charter prohibits it from
engaging in, any activities other than Permitted Receivables Financings
and any activity necessary, incidental or related thereto,
(3) no portion of the Indebtedness or any other obligation, contingent
or otherwise, of which
(a) is Guaranteed by the Borrower or any Restricted Subsidiary of
the Borrower,
(b) is recourse to or obligates the Borrower or any Restricted
Subsidiary of the Borrower in any way, or
(c) subjects any property or asset of the Borrower or any
Restricted Subsidiary of the Borrower (other than any Capital Stock
of such Securitization Subsidiary), directly or indirectly,
contingently or otherwise, to the satisfaction thereof, and
(4) with respect to which neither the Borrower nor any Restricted
Subsidiary of the Borrower (other than an Unrestricted Subsidiary) has any
obligation to maintain or preserve such its financial condition or cause
it to achieve certain levels of operating results
other than, in respect of clauses (3) and (4), pursuant to customary
representations, warranties, covenants and indemnities entered into in
connection with a Permitted Receivables Financing.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"Specified International Project" means the businesses, projects and
other activities of the Borrower or any of its Subsidiaries in South America as
of the date hereof and any reasonably related or incidental businesses, projects
and other activities thereto.
"Specified Project Finance Investments" means:
(1) in respect of a Project Finance Subsidiary, Investments made by the
Borrower and its other Restricted Subsidiaries in such Project Finance
Subsidiary as Restricted Investments in
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accordance with Section 5.03 or as Permitted Investments (other than
pursuant to clause (1) of the definition thereof), and
(2) in the case of an International Project Finance Subsidiary,
Investments made by the Borrower and its other Restricted Subsidiaries in
such International Project Finance Subsidiary: (a) as Restricted
Investments in accordance with Section 5.03, (b) as Permitted Investments
(other than pursuant to clause (1) of the definition thereof), or (c) in
the case of an International Project Finance Subsidiary specified in
clause (a) of the definition thereof, prior to the date hereof.
"Specified Security" means, as of any date of determination, the
security issued by the Borrower determined as follows: (a) the 8.625% Notes due
June 1, 2010 or (b) if such security is no longer outstanding, the Borrower
security outstanding and rated by both Rating Agencies as of such date with the
lowest rating from either Rating Agency from the following list: the 7.625%
Notes due July 15, 2019, the 7.875% Notes due September 1, 2021, the 7.5% Notes
due January 15, 2031 or the 8.75% Notes due March 15, 2032 or (c) if none of
such securities are outstanding or none are rated by both Rating Agencies, the
senior unsecured debt rating of the Borrower.
"Stated Maturity" means, with respect to any installment of interest
or principal on any Indebtedness, the date on which the payment of interest or
principal was scheduled to be paid in the original documentation governing such
Indebtedness (as amended, modified or supplemented from time to time other than
any change which makes earlier the date of any such payment made in
contemplation of any such payment or the refinancing of such Indebtedness in
whole or in part), and will not include any contingent obligations to repay,
redeem or repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.
"Subsidiary" means, with respect to any specified Person:
(a) any corporation, association or other business entity of which more
than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees of the corporation,
association or other business entity is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and
(b) any partnership (1) the sole general partner or the sole managing
general partner of which is such Person or a Subsidiary of such Person or
(2) the only general partners of which are that Person or one or more
Subsidiaries of that Person (or any combination thereof).
"Telerate Page" means, as applicable, page 3750 (or any successor
pages, respectively) of the Telerate Service of Moneyline Telerate (or any
successor).
"Termination Date" means the earlier of (a) April 15, 2009 and (b)
the date the Agent declares Advances to be accelerated pursuant to Section 6.01.
"Treasury Rate" means the yield to maturity (calculated on a
semi-annual bond-equivalent basis) at the time of the computation of United
States Treasury securities with a constant maturity (as compiled by and
published in the most recent Federal Reserve Statistical Release H.15 (519),
which has become publicly available at least two Business Days prior to the date
of the related acceleration or, if such Statistical Release is no longer
published, any publicly available source of similar market data) most nearly
equal to the then remaining period until the date specified in clause (a) of the
definition of Termination Date (the "Remaining Period"); provided that if the
Remaining Period expressed as a number of years (calculated to the nearest
one-twelfth) is not equal to the constant maturity
▇-▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Treasury security for which a weekly average yield is
given, the Treasury Rate shall be obtained by linear interpolation (calculated
to the nearest one-twelfth of a year) from the weekly average yields of United
States Treasury securities for which such yields are given, except that if such
Remaining Period is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one
year shall be used.
"Type" has the meaning specified in the definition of Revolving
Credit Advance.
"Underfunding" means, with respect to any Plan, the excess, if any,
of the "accumulated benefit obligations" (within the meaning of Statement of
Financial Accounting Standards 87) under such Plan (determined using the
actuarial assumptions and discount rate used with respect to such Plan in the
most recent financial statements of the Borrower) over the fair market value of
the assets held under the Plan.
"Unissued Letter of Credit Commitment" means, with respect to any
Issuing Bank, the obligation of such Issuing Bank to issue Letters of Credit at
the request of the Borrower in an amount equal to the excess of (a) the amount
of its Letter of Credit Commitment over (b) the aggregate Available Amount of
all Letters of Credit issued by such Issuing Bank.
"Unrestricted Subsidiary" means (1) any Securitization Subsidiary or
(2) any Subsidiary of the Borrower that is designated by the Board of Directors
of the Borrower as an Unrestricted Subsidiary pursuant to a Board Resolution,
but only to the extent that such Subsidiary under this clause (2):
(1) has no Indebtedness other than Non-Recourse Indebtedness;
(2) is not party to any agreement, contract, arrangement or
understanding with the Borrower or any Restricted Subsidiary of the
Borrower unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Borrower or such Restricted
Subsidiary than those that might be obtained at the time from Persons who
are not Affiliates of the Borrower;
(3) is a Person with respect to which neither the Borrower nor any of
its Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve
such Person's financial condition or to cause such Person to achieve any
specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Borrower or any of its
Restricted Subsidiaries.
Any designation of a Subsidiary of the Borrower as an Unrestricted
Subsidiary will be evidenced to the Agent by filing with the Agent the Board
Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the preceding conditions and was
permitted by Section 5.03 hereof. If, at any time, any Unrestricted Subsidiary
would fail to meet the preceding requirements as an Unrestricted Subsidiary, it
will thereafter cease to be an Unrestricted Subsidiary for purposes of this
Agreement and any Indebtedness of such Subsidiary will be deemed to be incurred
by a Restricted Subsidiary of the Borrower as of such date and, if such
Indebtedness is not permitted to be incurred as of such date under Section 5.04
hereof, the Borrower will be in default thereunder. The Board of Directors of
the Borrower may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that such designation will be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the Borrower of any
outstanding Indebtedness of such Unrestricted Subsidiary and such designation
will only be permitted if (1) such Indebtedness is
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permitted under Section 5.04 hereof, calculated on a pro forma basis as if such
designation had occurred at the beginning of the four-quarter reference period;
and (2) no Default or Event of Default would be in existence following such
designation.
"Unused Commitment" means, with respect to each Lender at any time,
(a) the amount of such Lender's Revolving Credit Commitment at such time minus
(b) the sum of (i) the aggregate principal amount of all Revolving Credit
Advances made by such Lender (in its capacity as a Lender) and outstanding at
such time, plus (ii) such Lender's Pro Rata Share of (A) the aggregate Available
Amount of all the Letters of Credit outstanding at such time and (B) the
aggregate principal amount of all Revolving Credit Advances made by each Issuing
Bank pursuant to Section 2.03(c) that have not been ratably funded by such
Lender and outstanding at such time.
"Voting Stock" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of
each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in
respect of the Indebtedness, by (b) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making of
such payment; by
(2) the then outstanding principal amount of such Indebtedness.
"Withdrawal Liability" has the meaning given such term under Part I
of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed, and all financial computations
and determinations pursuant hereto shall be made, in accordance with GAAP
consistent with those applied in the preparation of the financial statements
referred to in Section 4.01(e).
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01. The Revolving Credit Advances and Letters of Credit.
(a) Revolving Credit Advances. Without limiting each Lender's obligation to make
a Revolving Credit Advance pursuant to Section 2.03(c), each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until the Commitment Termination Date in an
aggregate amount not to exceed at any time such Lender's Unused Commitment at
such time. Each Revolving Credit Borrowing, other than a Revolving Credit
Advance pursuant to Section 2.03(c), shall be in an aggregate amount not less
than $5,000,000 or an integral multiple of $1,000,000 in excess thereof and
shall consist of Revolving Credit Advances of the same Type (but limited to a
Base Rate Advance or a Eurodollar Rate Advance) made on the same day by the
Lenders ratably according to their respective
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Revolving Credit Commitments; provided, however, that if there is no unused
portion of the Revolving Credit Commitment of one or more Lenders at the time of
any requested Revolving Credit Borrowing such Borrowing shall consist of
Revolving Credit Advances made on the same day by the Lender or Lenders who do
then have an Unused Commitment ratably according to the aggregate Unused
Commitments. Within the limits of each Lender's Revolving Credit Commitment, the
Borrower may borrow under this Section 2.01(a), prepay pursuant to Section 2.09
and reborrow under this Section 2.01(a).
(b) Letters of Credit. Each Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit (each, a "Letter of
Credit") for the account of the Borrower from time to time on any Business Day
during the period from the Effective Date until the Commitment Termination Date
(i) in an aggregate Available Amount for all Letters of Credit issued by all
Issuing Banks not to exceed at any time the Letter of Credit Facility at such
time, (ii) in an amount for each Issuing Bank not to exceed the amount of such
Issuing Bank's Letter of Credit Commitment at such time and (iii) in an amount
for each such Letter of Credit not to exceed an amount equal to the Unused
Commitments of the Lenders at such time. No Letter of Credit shall have an
expiration date (including all rights of the Borrower or the beneficiary to
require renewal) later than 10 Business Days prior to the date specified in
clause (a) of the definition of Termination Date. Within the limits referred to
above, the Borrower may request the issuance of Letters of Credit under this
Section 2.01(b), repay pursuant to Section 2.09 any Revolving Credit Advances
resulting from drawings thereunder pursuant to Section 2.03(c) and request the
issuance of additional Letters of Credit under this Section 2.01(b). The terms
"issue", "issued", "issuance" and all similar terms, when applied to a Letter of
Credit, shall include any increase, renewal, extension or amendment thereof.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than (x)
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurodollar Rate Advances or (y) 10:00 A.M. (New York
City time) on the Business Day of the proposed Revolving Credit Borrowing in the
case of a Revolving Credit Borrowing consisting of Base Rate Advances, by the
Borrower to the Agent, which shall give to each Lender prompt notice thereof by
telecopier or telex. Each such notice of a Revolving Credit Borrowing (a "Notice
of Revolving Credit Borrowing") shall be by telephone, confirmed immediately in
writing, or telecopier or telex in substantially the form of Exhibit B hereto,
specifying therein the requested (i) date of such Revolving Credit Borrowing,
(ii) Type of Advances comprising such Revolving Credit Borrowing (but limited to
a Base Rate Advance or a Eurodollar Rate Advance), (iii) aggregate amount of
such Revolving Credit Borrowing, and (iv) in the case of a Revolving Credit
Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for
each such Revolving Credit Advance. Each Lender shall, before 11:00 A.M. (New
York City time) on the date of such Revolving Credit Borrowing make available
for the account of its Applicable Lending Office to the Agent at the Agent's
Account, in same day funds, such Lender's ratable portion (as determined in
accordance with Section 2.01(a)) of such Revolving Credit Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Agent will make such funds available to the
Borrower at the Agent's address referred to in Section 9.01.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any proposed Revolving Credit Borrowing if the aggregate amount of such
Revolving Credit Borrowing is less than $5,000,000 or if the obligation of the
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.07 or 2.11 and (ii) the Eurodollar Rate Advances may not be
outstanding as part of more than six separate Revolving Credit Borrowings.
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(c) Each Notice of Revolving Credit Borrowing of the Borrower shall
be irrevocable and binding on the Borrower. The Borrower shall indemnify each
Lender against any loss, cost or expense incurred by such Lender as a result of
any failure by the Borrower to fulfill on or before the date specified in such
Notice of Revolving Credit Borrowing for such Revolving Credit Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss (excluding loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Revolving Credit Advance to be made by such Lender as
part of such Revolving Credit Borrowing when such Revolving Credit Advance, as a
result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior
to the date of any Revolving Credit Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Revolving Credit
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Revolving Credit Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such ratable
portion available to the Agent, such Lender and the Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Agent, at (i) in the
case of the Borrower, the interest rate applicable at the time to Revolving
Credit Advances comprising such Revolving Credit Borrowing and (ii) in the case
of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent
such corresponding amount, such amount so repaid shall constitute such Lender's
Revolving Credit Advance as part of such Revolving Credit Borrowing for purposes
of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance
to be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. (i) Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed issuance of such Letter of
Credit (or on such shorter notice as the applicable Issuing Bank may agree), by
the Borrower to any Issuing Bank, and such Issuing Bank shall give the Agent,
prompt notice thereof by telex, telecopier or cable. Each such notice of
issuance of a Letter of Credit (a "Notice of Issuance") shall be by telex,
telecopier or cable, confirmed promptly in writing, specifying therein the
requested (A) date of such issuance (which shall be a Business Day), (B)
Available Amount of such Letter of Credit, (C) expiration date of such Letter of
Credit (which shall not be later than 10 Business Days prior to the date
specified in clause (a) of the definition of Termination Date), (D) name and
address of the beneficiary of such Letter of Credit and (E) form of such Letter
of Credit, and shall be accompanied by such application and agreement for letter
of credit as such Issuing Bank may reasonably specify to the Borrower for use in
connection with such requested Letter of Credit (a "Letter of Credit
Agreement"). If the beneficiary and requested form of such Letter of Credit is
acceptable to such Issuing Bank in its sole discretion (it being agreed that a
Letter of Credit substantially in the form set forth in Exhibit E hereto (as
modified by an Issuing Bank in its reasonable discretion to account for any
change in any regulatory or legal restriction applicable to such Issuing Bank or
for any internal policy, procedure or guideline of such Issuing Bank or its
affiliates generally applicable to the issuance of letters of credit) is
acceptable in form to all Initial Issuing Banks), such Issuing Bank will, upon
fulfillment of the applicable conditions set forth in Article III, make such
Letter of Credit available to the Borrower at its office referred to in Section
9.01
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or as otherwise agreed with the Borrower in connection with such issuance. In
the event and to the extent that the provisions of any Letter of Credit
Agreement shall conflict with this Agreement, the provisions of this Agreement
shall govern.
(b) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
such Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Pro Rata Share of the Available Amount of such Letter of Credit. The
Borrower hereby agrees to each such participation. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally
agrees to pay to the Agent, for the account of such Issuing Bank, such Lender's
Pro Rata Share of each drawing made under a Letter of Credit funded by such
Issuing Bank and not reimbursed by the Borrower on the date made, or of any
reimbursement payment required to be refunded to the Borrower for any reason.
Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender further acknowledges and agrees that its participation
in each Letter of Credit will be automatically adjusted to reflect such Lender's
Pro Rata Share of the Available Amount of such Letter of Credit at each time
such Lender's Revolving Credit Commitment is assigned in accordance with Section
9.06, reduced in accordance with Sections 5.07 or 5.14 or otherwise amended
pursuant to this Agreement.
(c) Drawing and Reimbursement. The payment by an Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by such Issuing Bank of a Revolving Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft. Upon written demand
by such Issuing Bank, with a copy of such demand to the Agent, each Lender shall
pay to the Agent such Lender's Pro Rata Share of such outstanding Revolving
Credit Advance, by making available for the account of its Applicable Lending
Office to the Agent for the account of such Issuing Bank, by deposit to the
Agent's Account, in same day funds, an amount equal to the portion of the
outstanding principal amount of such Revolving Credit Advance to be funded by
such Lender. Each Lender acknowledges and agrees that its obligation to make
Revolving Credit Advances pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Promptly after receipt thereof, the Agent shall transfer such funds
to such Issuing Bank. Each Lender agrees to fund its Pro Rata Share of an
outstanding Revolving Credit Advance on (i) the Business Day on which demand
therefor is made by such Issuing Bank, provided that notice of such demand is
given not later than 11:00 A.M. (New York City time) on such Business Day, or
(ii) the first Business Day next succeeding such demand if notice of such demand
is given after such time. If and to the extent that any Lender shall not have so
made the amount of such Revolving Credit Advance available to the Agent, such
Lender agrees to pay to the Agent forthwith on demand such amount together with
interest thereon, for each day from the date of demand by any such Issuing Bank
until the date such amount is paid to the Agent, at the Federal Funds Rate for
its account or the account of such Issuing Bank, as applicable. If such Lender
shall pay to the Agent such amount for the account of any such Issuing Bank on
any Business Day, such amount so paid in respect of principal shall constitute a
Revolving Credit Advance made by such Lender on such Business Day for purposes
of this Agreement, and the outstanding principal amount of the Revolving Credit
Advance made by such Issuing Bank shall be reduced by such amount on such
Business Day.
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(d) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to
each Lender and the Agent on the first Business Day of each month a written
report summarizing issuance and expiration dates of Letters of Credit during the
preceding month and drawings during such month under all Letters of Credit and
(B) to the Agent and each Lender on the first Business Day of each calendar
quarter a written report setting forth the average daily aggregate Available
Amount during the preceding calendar quarter of all Letters of Credit. Each
Issuing Bank shall provide the reports described in clauses (A) and (B) above to
the Borrower upon the Borrower's request.
(e) Failure to Make Revolving Credit Advances. The failure of any
Lender to make the Revolving Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Revolving Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on such date.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay to
the Agent for the account of each Lender a facility fee (the "Facility Fee")
(nonrefundable under any circumstances), payable semi-annually in arrears, on
the aggregate amount of such Lender's Revolving Credit Commitment from the
Effective Date until the date specified in clause (a) of the definition of
Termination Date (or, if later, the date of payment in full of all amounts
payable hereunder (other than indemnities)), at a rate per annum equal to 3.18%;
provided, however, that such Facility Fee shall cease to accrue upon payment in
full of all amounts payable hereunder following the acceleration thereof under
Section 6.01 due to an Event of Default unless such Event of Default occurred by
reason of any willful action or inaction taken or not taken by or on behalf of
the Borrower or its Subsidiaries with the intention of avoiding continued
payment of the Facility Fee, in which case the present value of the Facility Fee
that would otherwise accrue until the date specified in clause (a) of the
definition of Termination Date, discounted at the Treasury Rate plus 50 basis
points, as determined by the Agent, will become immediately due and payable to
the extent permitted by law upon acceleration of the amounts payable hereunder.
The Facility Fee shall accrue for each period from one Facility Fee Period End
Date (or, in the case of the first such period, the Effective Date) to the next
following Facility Fee Period End Date (or, in the case of any reduction in such
Lender's Revolving Credit Commitment, to the date of such reduction) and shall
be payable one Business Day before such following Facility Fee Period End Date
(or, as applicable, before such date of reduction). The Facility Fee will
continue to accrue on the amount by which the Revolving Credit Commitment is
being reduced until payment in full of all amounts payable in respect of such
reduction.
(b) Agent's Fees. The Borrower shall pay to the Agent for its own
account such fees as may from time to time be separately agreed between the
Borrower and the Agent.
(c) Initial Fee. The Borrower agrees to pay to the Agent for the
account of each Lender an initial fee (nonrefundable under any circumstances)
equal to 2% of the aggregate Revolving Credit Commitments, payable on or before
the Effective Date.
(d) Additional Fees. The Borrower shall pay to Citibank for its own
account such fees as may from time to time be separately agreed between the
Borrower and Citibank.
SECTION 2.05. Repayment of Revolving Credit Advances. (a) The
Borrower shall repay to the Agent for the ratable account of the Lenders, (i) on
the Termination Date, the aggregate principal amount of the Revolving Credit
Advances then outstanding and (ii) the aggregate principal amount of each
Revolving Credit Advance made after the Termination Date as the result of a
drawing under a Letter of Credit on the date of such advance (unless such
drawing is reimbursed under the related Letter of Credit Agreement).
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(b) The obligations of the Borrower under this Agreement, any Letter
of Credit Agreement and any other agreement or instrument relating to any Letter
of Credit shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit Agreement and
such other agreement or instrument under all circumstances, including, without
limitation, the following circumstances (it being understood that any such
payment by the Borrower is without prejudice to, and does not constitute a
waiver of, any rights the Borrower might have or might acquire as a result of
the payment by any Lender of any draft or the reimbursement by the Borrower
thereof):
(i) any lack of validity or enforceability of this Agreement, any
Note, any Letter of Credit Agreement, any Letter of Credit or any other
agreement or instrument relating thereto (all of the foregoing being,
collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of the Borrower in
respect of any L/C Related Document or any other amendment or waiver of or
any consent to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right
that the Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank, the
Agent, any Lender or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any unrelated
transaction;
(iv) any statement or any other document presented under a Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of the Borrower in respect of
the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor.
SECTION 2.06. Interest on Revolving Credit Advances. (a) Scheduled
Interest. The Borrower shall pay interest to the Agent for the ratable account
of the Lenders on the unpaid principal amount of each Revolving Credit Advance
owing to each Lender from the date of such Revolving Credit Advance until such
principal amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all times
to the Base Rate in effect from time to time, payable in arrears monthly
on the last day of each calendar month during such periods and on the date
such Base Rate Advance shall be Converted or paid in full.
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(ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving Credit
Advance to the Eurodollar Rate for such Interest Period for such Revolving
Credit Advance, payable in arrears on the last day of such Interest Period
and, if such Interest Period has a duration of more than one month, on
each day that occurs during such Interest Period every month from the
first day of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.
(iii) Fixed Rate Advances. During such periods as such Revolving
Credit Advance is a Fixed Rate Advance, a rate per annum equal at all
times to the Fixed Rate in effect from time to time, payable in arrears
semi-annually on each Facility Fee Period End Date during such periods and
on the date such Fixed Rate Advance shall be paid in full.
SECTION 2.07. Interest Rate Determination. (a) Each Reference Bank
that is a party hereto agrees to furnish to the Agent timely information for the
purpose of determining each Eurodollar Rate if the applicable Telerate Page is
unavailable. If any one or more of the Reference Banks shall not furnish such
timely information to the Agent for the purpose of determining any such interest
rate, the Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks. The Agent shall give
prompt notice to the Borrower and the Lenders of the applicable interest rate
determined by the Agent for purposes of Section 2.06(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of determining
the interest rate under Section 2.06(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Agent that (i) they are unable to obtain matching deposits in
the London interbank market at or about 11:00 A.M. (London time) on the second
Business Day before the making of a Borrowing in sufficient amounts to fund
their respective Revolving Credit Advances as part of such Borrowing during its
Interest Period or (ii) the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance, and (ii) the obligation of the Lenders to make, or to Convert Revolving
Credit Advances into, Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances causing
such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify the Borrower and the Lenders and such Advances
will automatically, on the last day of the then existing Interest Period
therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $5,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
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(f) If the Telerate Page is unavailable and fewer than two Reference
Banks furnish timely information to the Agent for determining the Eurodollar
Rate for any Eurodollar Rate Advances,
(i) the Agent shall forthwith notify the Borrower and the Lenders
that the interest rate cannot be determined for such Eurodollar Rate
Advances,
(ii) with respect to Eurodollar Rate Advances, each such Advance
will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance (or if such Advance is then a
Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate Advances
or to Convert Revolving Credit Advances into Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
(g) On the date the Agent declares the obligation of a Lender to
make Advances (other than Revolving Credit Advances by an Issuing Bank or a
Lender pursuant to Section 2.03(c)) and of the Issuing Banks to issue Letters of
Credit to be terminated pursuant to Section 9.06(a), each Eurodollar Rate
Advance and Base Rate Advance with respect to the assigned portion of this
Agreement will automatically Convert into a Fixed Rate Advance.
SECTION 2.08. Optional Conversion of Revolving Credit Advances. The
Borrower may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.07 and 2.11,
Convert all Revolving Credit Advances of the Type of either a Eurodollar Rate
Advance or a Base Rate Advance comprising the same Borrowing into Revolving
Credit Advances of the other such Type; provided, however, that any Conversion
of Eurodollar Rate Advances into Base Rate Advances shall be made only on the
last day of an Interest Period for such Eurodollar Rate Advances, any Conversion
of Base Rate Advances into Eurodollar Rate Advances shall be in an amount not
less than the minimum amount specified in Section 2.02(b) and no Conversion of
any Revolving Credit Advances shall result in more separate Revolving Credit
Borrowings than permitted under Section 2.02(b). Each such notice of a
Conversion shall, within the restrictions specified above, specify (i) the date
of such Conversion, (ii) the Revolving Credit Advances to be Converted, and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for each such Advance. Each notice of Conversion shall
be irrevocable and binding on the Borrower.
SECTION 2.09. Prepayments of Revolving Credit Advances. Except as
provided in Sections 5.07 or 5.14, the Borrower may, upon notice at least two
Business Days' prior to the date of such prepayment, in the case of Eurodollar
Rate Advances, and not later than 11:00 A.M. (New York City time) on the date of
such prepayment, in the case of Base Rate Advances or Fixed Rate Advances, to
the Agent stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Borrower shall, prepay the
outstanding principal amount of the Revolving Credit Advances comprising part of
the same Revolving Credit Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount not less than $5,000,000 or an integral multiple of $1,000,000
in excess thereof, (y) in the event of any such prepayment of a Eurodollar Rate
Advance, the Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 9.03(c) and (z) no prepayment may be made by the
Borrower during the 25 days prior to and including the date specified in clause
(a) of the definition of Termination Date.
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SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority including, without limitation, any agency
of the European Union or similar monetary or multinational authority (whether or
not having the force of law), there shall be any increase in the cost to any
Eligible Lender of agreeing to make or making, funding or maintaining Eurodollar
Rate Advances or of agreeing to issue or of issuing or maintaining or
participating in Letters of Credit (excluding for purposes of this Section 2.10
any such increased costs resulting from (i) withholding taxes with respect to
payments by the Borrower to or for the account of any Lender or the Agent
hereunder or under the Notes or any other documents to be delivered hereunder
and (ii) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
law of which such Lender is organized or has its Applicable Lending Office or
any political subdivision thereof), then the Borrower shall from time to time,
upon demand by such Eligible Lender (with a copy of such demand to the Agent),
pay to the Agent for the account of such Eligible Lender additional amounts
sufficient to compensate such Eligible Lender for such increased cost. A
certificate as to the amount of such increased cost, submitted to the Borrower
and the Agent by such Eligible Lender, shall be prima facie evidence of the
amount of such additional amounts. No Eligible Lender shall have any right to
recover any additional amounts under this Section 2.10(a) for any period more
than 90 days prior to the date such Eligible Lender notifies the Borrower of any
such amounts.
(b) If any Eligible Lender determines that compliance with any law
or regulation or any guideline or request from any central bank or other
governmental authority including, without limitation, any agency of the European
Union or similar monetary or multinational authority (whether or not having the
force of law) affects or would affect the amount of capital required or expected
to be maintained by such Eligible Lender or any corporation controlling such
Eligible Lender and that the amount of such capital is increased by or based
upon the existence of such Eligible Lender's commitment to lend or to issue or
participate in Letters of Credit hereunder and other commitments of this type or
the issuance of or participation in the Letters of Credit (or similar contingent
obligations), then, upon demand by such Eligible Lender on the Borrower
accompanied by a certificate (which certificate shall specify in reasonable
detail the nature of such change in capital requirements, the proposed (or
actual) compliance change to be adopted by the applicable Eligible Lender and
the calculation upon which any compensation is claimed hereunder) with a copy of
such demand and certificate to the Agent, the Borrower shall pay to the Agent
within five Business Days of receipt of demand for payment for the account of
such Eligible Lender, from time to time as specified by such Eligible Lender,
additional amounts sufficient to compensate such Eligible Lender or such
corporation in the light of such circumstances, to the extent that such Eligible
Lender reasonably determines such increase in capital to be allocable to the
existence of such Eligible Lender's commitment to lend hereunder. A certificate
as to such amounts submitted to the Borrower and the Agent by such Eligible
Lender shall be prima facie evidence of such amounts, absent manifest error. No
Eligible Lender shall have any right to recover any additional amounts under
this Section 2.10(b) for any period more than 90 days prior to the date such
Eligible Lender notifies the Borrower of any such amounts.
(c) Before making any demand under this Section 2.10, each Eligible
Lender agrees to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different lending office if
the making of such a designation would avoid the need for, or reduce the amount
of, such increased cost and would not, in the reasonable judgment of such
Eligible Lender, be otherwise disadvantageous to such Eligible Lender.
SECTION 2.11. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that
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it is unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (a) each such Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance and (b) the
obligation of the Lenders to make Eurodollar Rate Advances or to Convert
Revolving Credit Advances into Eurodollar Rate Advances shall be suspended until
the Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION 2.12. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under any Notes, without regard to existence of any
counterclaim, set-off, defense or other right that the Borrower may have at any
time against any Issuing Bank, the Agent, any Lender or any other Person,
whether in connection with the transaction contemplated in this Agreement or any
Note or any unrelated transaction, not later than 11:00 A.M. (New York City
time) on the day when due in Dollars to the Agent at the Agent's Account in same
day funds. The Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal, interest, or fees ratably (other than
amounts payable pursuant to Sections 2.10 or 9.03(c)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 9.06(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under any Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall be
made by the Agent on the basis of a year of 365 or 366 days, as the case may be,
and all computations of interest based on the Eurodollar Rate or the Federal
Funds Rate and of fees (other than the Facility Fee) shall be made by the Agent
on the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or fees are payable. All computations of the Facility Fee
and interest based on the Fixed Rate shall be made by the Agent on the basis of
a 360 day year with 12 months of 30 days each. Each determination by the Agent
of an interest rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case (except in the case of the Facility Fee and interest based on the Fixed
Rate) be included in the computation of payment of interest or fee, as the case
may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(d) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
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SECTION 2.13. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Revolving Credit Advances owing to
it (other than pursuant to Sections 2.10 or 9.03(c)) in excess of its Pro Rata
Share of payments on account of the Revolving Credit Advances obtained by all
the Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's Pro Rata Share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.13 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.14. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Revolving Credit
Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. The Borrower agrees that upon
request of any Lender to the Borrower (with a copy of such request to the Agent)
to the effect that such Lender receive a Revolving Credit Note to evidence
(whether for purposes of pledge, enforcement or otherwise) the Revolving Credit
Advances owing to, or to be made by, such Lender, the Borrower shall promptly
execute and deliver to such Lender a Revolving Credit Note payable to the order
of such Lender in a principal amount up to the Revolving Credit Commitment of
such Lender.
(b) The Register maintained by the Agent pursuant to Section 9.06(d)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each Borrowing made hereunder, the Type of Advances comprising such Borrowing
and, if appropriate, the Interest Period applicable thereto, (ii) the terms of
each Assignment and Acceptance delivered to and accepted by it, (iii) the amount
of any principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder and (iv) the amount of any sum received by
the Agent from the Borrower hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant
to subsection (b) above, and by each Lender in its account or accounts pursuant
to subsection (a) above, shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable from the
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an
entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of the
Borrower under this Agreement.
SECTION 2.15. Use of Proceeds. The proceeds of the Advances and
issuances of Letters of Credit shall be available (and the Borrower agrees that
it shall use such proceeds) solely for general corporate purposes of the
Borrower and its Subsidiaries and consistent with Section 4.01(g).
SECTION 2.16. Additional Interest on Eurodollar Rate Advances. The
Borrower shall pay to each Eligible Lender, so long as such Eligible Lender
shall be required under regulations of
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the Board of Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each
Eurodollar Rate Advance of such Eligible Lender to the Borrower, from the date
of such Eurodollar Rate Advance until such principal amount is paid in full, at
an interest rate per annum equal at all times to the remainder obtained by
subtracting (a) the Eurodollar Rate for the Interest Period for such Eurodollar
Rate Advance from (b) the rate obtained by dividing such Eurodollar Rate by a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such
Eligible Lender for such Interest Period, payable on each date on which interest
is payable on such Eurodollar Rate Advance. Such additional interest shall be
determined by such Eligible Lender and notified to the Borrower through the
Agent. A certificate as to the amount of such additional interest submitted to
the Borrower and the Agent by such Eligible Lender shall be conclusive and
binding for all purposes, absent manifest error. No Eligible Lender shall have
the right to recover any additional interest pursuant to this Section 2.16 for
any period more than 90 days prior to the date such Eligible Lender notifies the
Borrower that additional interest may be charged pursuant to this Section 2.16.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and
as of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 2003, except as otherwise publicly disclosed prior to the date
hereof.
(b) There shall exist no action, Environmental Action, suit,
investigation, litigation or proceeding affecting the Borrower or any of its
Subsidiaries pending or, to the knowledge of the Borrower, threatened before any
court, governmental agency or arbitrator that (i) could be reasonably likely to
have a Material Adverse Effect other than the matters described on Schedule
3.01(b) hereto (the "Disclosed Litigation") or (ii) purports to affect the
legality, validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby, and there shall have been
no material adverse change in the status, or financial effect on the Borrower or
on the Borrower and its Subsidiaries taken as a whole, of the Disclosed
Litigation from that described on Schedule 3.01(b) hereto.
(c) Nothing shall have come to the attention of the Lenders during
the course of their due diligence investigation to lead them to believe that the
Borrower's public filings under the Securities Exchange Act of 1934 were or have
become misleading, incorrect or incomplete in any material respect; without
limiting the generality of the foregoing, the Lenders shall have been given such
access to the management, records, books of account, contracts and properties of
the Borrower and its Subsidiaries as they shall have reasonably requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall have
been obtained (without the imposition of any conditions that are not reasonably
acceptable to the Lenders), except to the extent that the failure to do so would
not have a Material Adverse Effect, and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of the Lenders that
restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated hereby.
(e) The Borrower shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
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(f) The Borrower shall have paid all accrued and unpaid reasonably
incurred fees and expenses of the Agent and the Lenders (including the accrued
and unpaid reasonably incurred fees and expenses of counsel to the Agent).
(g) On the Effective Date, the following statements shall be true
and the Agent shall have received an Officer's Certificate, in sufficient copies
for each Lender, signed by a duly authorized officer of the Borrower, dated the
Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01
are correct on and as of the Effective Date except where the failure for
such representations and warranties to be correct would not have a
Material Adverse Effect, and
(ii) No event has occurred and is continuing that constitutes a
Default.
(h) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance reasonably
satisfactory to the Agent and (except for the Revolving Credit Notes) in
sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of the Lenders to the
extent requested by any Lender pursuant to Section 2.14.
(ii) Certified copies of the resolutions of the Board of Directors
of the Borrower approving this Agreement and the Notes, and of all
documents evidencing other necessary corporate action and governmental
approvals (to the extent such documents are requested by any Lender), if
any, with respect to this Agreement and such Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying the names and true signatures of the officers of
the Borrower authorized to sign this Agreement and the Notes and the other
documents to be delivered hereunder.
(iv) A favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Counsel
to the Borrower and White & Case LLP, outside counsel for the Borrower,
substantially in the form of Exhibits D-1 and D-2 hereto, respectively,
and as to such other matters as any Lender through the Agent may
reasonably request.
(v) Such other approvals, opinions or documents as any Lender,
through the Agent, may reasonably request.
No information delivered by the Borrower pursuant to this Section 3.01 may
be designated by the Borrower to be Confidential Information.
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing and Letter of Credit Issuance. The obligation of each Lender to make a
Revolving Credit Advance (other than an Advance made by any Issuing Bank or any
Lender pursuant to Section 2.03(c)) on the occasion of each Revolving Credit
Borrowing and the obligation of each Issuing Bank to issue a Letter of Credit
shall be subject to the following conditions precedent:
(a) That the Effective Date shall have occurred.
(b) On the date of such Revolving Credit Borrowing or issuance (and
each of the giving of the applicable Notice of Revolving Credit Borrowing,
Notice of Issuance and the acceptance by the
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Borrower of the proceeds of such Revolving Credit Borrowing or Letter of Credit
shall constitute a representation and warranty by the Borrower that on the date
of such Borrowing or such issuance such statements are true) no event has
occurred and is continuing, or would result from such Revolving Credit Borrowing
or issuance or from the application of the proceeds therefrom, that constitutes
(i) a Default with respect to Sections 6.01(a), (b), (c), (g) or (h) or (ii) an
Event of Default.
SECTION 3.03. Determinations Under Sections 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto in reasonable detail. The Agent shall promptly notify the
Lenders and the Borrower of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing
and in good standing under the law of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes to be delivered by it, and the consummation of the
transactions contemplated hereby, are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and do not and will
not contravene, or cause or constitute a violation of, any provision of law or
regulation or any provision of the Borrower's charter or by-laws or result in
the breach of, or constitute a default or require any consent under, or result
in the creation of any lien, charge or encumbrance upon any of the properties,
revenues, or assets of the Borrower pursuant to, any indenture or other material
agreement or instrument to which the Borrower is a party or by which the
Borrower or its property may be bound or affected.
(c) No authorization, consent, approval (including any exchange
control approval), license or other action by, and no notice to or filing or
registration with, any governmental authority, administrative agency or
regulatory body or any other third party (including any creditor) is required
for the due execution, delivery and performance by the Borrower of this
Agreement or the Notes to be delivered by it.
(d) This Agreement has been, and each of the Notes to be delivered
by it when delivered hereunder will have been, duly executed and delivered by
the Borrower. This Agreement is, and each of the Notes when delivered hereunder
will be, the legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with their respective terms (subject, as to
the enforcement of remedies, to applicable bankruptcy, reorganization,
moratorium and similar laws affecting creditors rights generally).
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2003, and the related Consolidated statements of
income and cash flows of the Borrower and its Subsidiaries for the fiscal year
then ended (together with the notes to the financial statements of the Borrower
and its Consolidated Subsidiaries), accompanied by an opinion of Ernst & Young
LLP,
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independent public accountants, the Consolidated financial condition of the
Borrower and its Subsidiaries as at such date and the Consolidated results of
the operations of the Borrower and its Subsidiaries for the periods ended on
such date, all in accordance with generally accepted accounting principles
consistently applied. Since December 31, 2003, there has been no Material
Adverse Change, except as otherwise publicly disclosed.
(f) There is no pending or, to the knowledge of the Borrower,
threatened action, suit, investigation, litigation or proceeding, including,
without limitation, any Environmental Action, affecting the Borrower or any of
its Subsidiaries before any court, governmental agency or arbitrator that (i)
could be reasonably likely to have a Material Adverse Effect (other than the
Disclosed Litigation) or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby, and there has been no material adverse change
in the status, or financial effect on the Borrower or on the Borrower and its
Subsidiaries taken as a whole, of the Disclosed Litigation from that described
on Schedule 3.01(b) hereto.
(g) Neither the Borrower nor its Subsidiaries are engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying any margin stock. Following application of the
proceeds of each Advance, not more than 25 percent of the value of the assets
(either of the Borrower or of the Borrower and its relevant Subsidiaries on a
Consolidated basis) subject to any of the covenants contained in Article V will
be margin stock (within the meaning of Regulation U).
(h) The Borrower is not, and immediately after the application of
the proceeds of each Borrowing, will not be, (i) an "investment company", or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended, or (ii) a "holding company" within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
(i) Neither this Agreement nor any other document delivered by or on
behalf of the Borrower or any of its Affiliates in connection with this
Agreement or included therein contained or contains any material misstatement of
fact or omitted 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.
(j) The Borrower and each of its Subsidiaries and ERISA Affiliates
have met their minimum funding requirements under ERISA with respect to their
Plans in all material respects and have not incurred liability to the PBGC in an
amount in excess of $100,000,000, individually or in aggregate, other than for
the payment of premiums, in connection with such Plans.
(k) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan and no condition or event currently exists or currently
is expected to occur that could result in any ERISA Event.
(l) The Schedules B (Actuarial Information) to the most recent
annual reports (Form 5500 Series) with respect to each Plan, copies of which
have been filed with the Internal Revenue Service (and which will be furnished
to any Lender through the Agent upon the request of such Lender through the
Agent to the Borrower), are complete and accurate in all material respects and
fairly present in all material respects the funding status of such Plans at such
date.
(m) No amendment with respect to which security is required under
Section 401(a)(29) of the Code or Section 307 of ERISA has been made or is
reasonably expected to be made to any Plan. The
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aggregate Underfunding with respect to all Plans which have any Underfunding
does not exceed $100,000,000.
(n) Neither the Borrower nor any of its Subsidiaries or ERISA
Affiliates has incurred or reasonably expects to incur any Withdrawal Liability
to any Multiemployer Plan in an amount in excess of $100,000,000, individually
or in aggregate.
(o) Neither the Borrower nor any of its Subsidiaries or ERISA
Affiliates has been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within the
meaning of Title IV of ERISA. No Multiemployer Plan is reasonably expected to be
in reorganization or to be terminated, within the meaning of Title IV of ERISA,
in a reorganization or termination which might reasonably be expected to result
in a liability of the Borrower or any of its Subsidiaries or ERISA Affiliates in
an amount in excess of $100,000,000, individually or in aggregate.
(p) No default under any agreement or instrument evidencing any
Indebtedness of the Borrower or any of its Subsidiaries has occurred and is
continuing, and no such event will occur upon the occurrence of the Effective
Date, other than any such default which could not be reasonably expected to have
a Materially Adverse Effect.
(q) The operations and properties of the Borrower and its
Subsidiaries taken as a whole comply in all material respects with all
applicable Environmental Laws, all necessary Environmental Permits have been
applied for or have been obtained and are in effect for the operations and
properties of the Borrower and its Subsidiaries, and the Borrower and its
Subsidiaries are in compliance in all material respects with all such
Environmental Permits other than, in any such case, where any such failure could
not be reasonably expected to have a Material Adverse Effect. Except as
disclosed in Schedule 3.01(b), no circumstances exist that would be reasonably
likely to form the basis of an Environmental Action against the Borrower or any
of its Subsidiaries or any of their properties that could have a Material
Adverse Effect.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Written Statement to Agent. The Borrower will deliver
to the Agent on or before May 31 in each year (beginning with May 31, 2004) an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as officers of the Borrower they would normally have
knowledge of any default by the Borrower in the performance of any covenants
contained in this Agreement, stating whether or not they have knowledge of any
such default and, if so, specifying each such default of which the signers have
knowledge and the nature thereof. At least one signatory to such Officers'
Certificate shall be the principal executive officer, principal financial
officer, Treasurer or principal accounting officer of the Borrower. No
information delivered by the Borrower pursuant to this Section 5.01 may be
designated by the Borrower to be Confidential Information.
SECTION 5.02. Commission Reports; Financial Statements. (a) Whether
or not required by the Commission, the Borrower will furnish to the Agent
(unless otherwise publicly available on or through the Commission's ▇▇▇▇▇
system) within 30 days after the time periods specified in the Commission's
rules and regulations:
(i) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Borrower were
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required to file such reports, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations", and, with
respect to the annual information only, a report on the annual financial
statements by the Borrower's certified independent accountants; and
(ii) all current reports that would be required to be filed with
the Commission on Form 8-K if the Borrower were required to file such
reports.
(b) If the Borrower has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by paragraph (a) will include a reasonably detailed presentation,
either on the face of the financial statements or in the footnotes thereto, of
the financial condition and results of operations of the Borrower and its
Restricted Subsidiaries excluding in all respects the Unrestricted Subsidiaries
of the Borrower.
(c) On request from the Agent, the Borrower shall provide the Agent
with a sufficient number of copies of all reports and other documents and
information that the Agent may be required to deliver to Lenders pursuant to
this Agreement, if any are so required.
(d) Delivery of such reports, information and documents to the Agent
is for informational purposes only and the Agent's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Borrower's
compliance with any of its covenants or the other provisions hereunder (as to
which the Agent is entitled to rely exclusively on Officers' Certificates).
(e) No information delivered by the Borrower pursuant to this
Section 5.02 may be designated by the Borrower to be Confidential Information.
SECTION 5.03. Limitation On Restricted Payments. (a) The Borrower
will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly:
(i) declare or pay any dividend or make any other payment or
distribution on account of the Borrower's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any payment
in connection with any merger or consolidation involving the Borrower or
any of its Restricted Subsidiaries) or to the direct or indirect holders
of the Borrower's or any of its Restricted Subsidiaries' Equity Interests
in their capacity as such (other than dividends or distributions payable
in Equity Interests (other than Disqualified Stock) of the Borrower or to
the Borrower or a Restricted Subsidiary of the Borrower);
(ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Borrower) any Equity Interests of the
Borrower;
(iii) make any principal payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any Indebtedness
of the Borrower that is subordinated in right of payment to the
Indebtedness created by this Agreement, except a payment of principal at
the Stated Maturity thereof; or
(iv) make any Restricted Investment (all such payments and other
actions set forth in these clauses (i) through (iv) above being
collectively referred to as "Restricted Payments"),
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unless, at the time of and after giving effect to such Restricted Payment,
no Default or Event of Default has occurred and is continuing or would
occur as a consequence of such Restricted Payment; and
(v) The Borrower would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have
been permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in the first paragraph
of Section 5.04 hereof, and
(vi) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Borrower and its Restricted
Subsidiaries after the date hereof (excluding Restricted Payments
permitted by clauses (ii), (iii), (v) and (vii) of the next succeeding
paragraph), is less than the sum, without duplication, of:
(1) 50% of the Consolidated Net Income of the Borrower for the
period (taken as one accounting period) beginning with the first day
of the fiscal quarter commencing July 1, 2004 and ending on the last
day of the Borrower's most recently ended fiscal quarter for which
internal financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such
period is a deficit, less 100% of such deficit), plus
(2) 100% of the aggregate net cash proceeds received by the
Borrower (including the Fair Market Value of any Permitted Business
or assets used or useful in a Permitted Business to the extent
acquired in consideration of Equity Interests of the Borrower (other
than Disqualified Stock)) since June 23, 2003 as a contribution to
its common equity capital or from the issue or sale of Equity
Interests of the Borrower (other than Disqualified Stock) or from
the issue or sale of convertible or exchangeable Disqualified Stock
or convertible or exchangeable debt securities of the Borrower that
have been converted into or exchanged for such Equity Interests
(other than Equity Interests (or Disqualified Stock or debt
securities) sold to a Restricted Subsidiary of the Borrower), plus
(3) to the extent that any Restricted Investment that was made
after June 23, 2003 is sold for cash or otherwise liquidated or
repaid for cash, the lesser of (i) the cash return of capital with
respect to such Restricted Investment, including, without
limitation, repayment of principal of any Restricted Investment
constituting a loan or advance (less the cost of disposition, if
any) and (ii) the initial amount of such Restricted Investment, plus
(4) to the extent that any Unrestricted Subsidiary of the
Borrower is redesignated as a Restricted Subsidiary after the date
hereof, the lesser of (i) the Fair Market Value of the Borrower's
Investment in such Subsidiary as of the date of such redesignation
or (ii) such Fair Market Value as of the date on which such
Subsidiary was originally designated as an Unrestricted Subsidiary.
(b) Notwithstanding the foregoing, the preceding provisions of this
Section 5.03 shall not prohibit:
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(i) the payment of any dividend within 60 days after the date of
declaration of the dividend, if at the date of declaration the dividend
payment would have complied with the provisions of this Agreement;
(ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness of the Borrower or of any
Equity Interests of the Borrower in exchange for, or out of the net cash
proceeds of, the substantially concurrent sale (other than to a Restricted
Subsidiary of the Borrower) of Equity Interests of the Borrower (other
than Disqualified Stock); provided that the amount of any such net cash
proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition will be excluded from clause
(ii)(2) of the preceding paragraph;
(iii) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness of the Borrower with the net cash proceeds from
an incurrence of Permitted Refinancing Indebtedness;
(iv) quarterly dividends paid pro rata on outstanding common stock
of the Borrower in an amount of up to $0.05 per share, provided that (A)
such per share amount shall be adjusted proportionately upon any
reclassification, split, combination, special distribution of common stock
to holders thereof or similar event such that (x) the per share amount
multiplied by the number of such shares outstanding, in each case
determined immediately before giving effect to such event is equal to (y)
the per share amount multiplied by the number of such shares outstanding,
in each case determined immediately after giving effect to such event and
(B) in no event shall the aggregate quarterly amount payable pursuant to
this clause exceed by 20% the aggregate quarterly amount that would be
payable on all shares of common stock outstanding on the date hereof if a
quarterly dividend payment of $0.05 per share were payable on the date
hereof;
(v) the payment of any distribution, payment or dividend by a
Restricted Subsidiary of the Borrower, on a pro rata basis to all holders
or on a basis more favorable to the Borrower and its Restricted
Subsidiary, to the holders of such Restricted Subsidiary's Equity
Interests;
(vi) so long as no Default or Event of Default has occurred and is
continuing or would be caused thereby, the repurchase, redemption or
acquisition or retirement for value of any Equity Interests of the
Borrower held by any member of the Borrower's (or any of its Restricted
Subsidiaries') management pursuant to any management equity subscription
agreement, stock option agreement or similar agreement; provided that the
aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests may not exceed $25.0 million in any twelve-month
period and provided, further that if the amount so paid in any calendar
year is less than $25.0 million, such shortfall may be used to so
repurchase, redeem, acquire or retire Equity Interests in either of the
next two calendar years in addition to the $25.0 million that may
otherwise be paid in each such calendar year;
(vii) so long as no Default or Event of Default has occurred and is
continuing or would be caused thereby, any Investment made in exchange
for, or out of the net cash proceeds of, a substantially concurrent
offering of Equity Interests of the Borrower; provided that the amount of
any such net cash proceeds will be excluded from clause (ii)(2) of the
preceding paragraph; and
(viii) other Restricted Payments in an aggregate amount since the
date hereof not to exceed $200 million.
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(c) The amount of all Restricted Payments (other than cash) will be
the Fair Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Borrower or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The Fair Market Value of any assets or securities that are required to be valued
by this Section 5.03 will be determined, in the case of amounts greater than $50
million but less than $150 million, by an officer of the Borrower and, in the
case of amounts of $150 million or more, by the Board of Directors of the
Borrower.
SECTION 5.04. Limitation On Incurrence Of Indebtedness And Issuance
Of Preferred Stock. (a) The Borrower will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise (collectively, "incur") with respect to any
Indebtedness (including Acquired Debt), and the Borrower will not issue any
Disqualified Stock and will not permit any of its Restricted Subsidiaries to
issue any shares of preferred stock; provided, however, that the Borrower and
its Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) or
the Borrower may issue Disqualified Stock, if the Fixed Charge Coverage Ratio
for the Borrower's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such Disqualified Stock is
issued would have been at least 2.0 to 1, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred or Disqualified Stock had been issued,
as the case may be, at the beginning of such four-quarter period.
(b) Paragraph (a) of this Section 5.04 will not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by the Borrower or any Restricted Subsidiary of
Indebtedness and letters of credit under any Credit Facilities to which
the Borrower or any Restricted Subsidiary is a party in an aggregate
principal amount at any one time outstanding under this clause (i) (with
letters of credit being deemed to have a principal amount equal to the
undrawn face amount thereof) not to exceed $2.0 billion;
(ii) the incurrence by the Borrower and its Restricted Subsidiaries
of the Existing Indebtedness;
(iii) the incurrence by the Borrower of Indebtedness under this
Agreement;
(iv) the incurrence by the Borrower and any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case, incurred
for the purpose of financing all or any part of the purchase price or cost
of construction or improvement of property, plant or equipment used in the
business of the Borrower or such Restricted Subsidiary, or Permitted
Refinancing Indebtedness in respect of any Indebtedness incurred under
this clause (iv) in an aggregate principal amount not to exceed $150
million at any time outstanding;
(v) the incurrence by the Borrower or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance or replace
Indebtedness (other than intercompany Indebtedness) that was permitted to
be incurred under paragraph (a) of this Section 5.04 or clauses (ii),
(iii) or (v) of this paragraph (b);
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(vi) the incurrence by the Borrower or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Borrower
and any of its Restricted Subsidiaries; provided, however, that (a) any
subsequent issuance or transfer of Equity Interests that results in any
such Indebtedness being held by a Person other than the Borrower or a
Restricted Subsidiary of the Borrower and (b) any sale or other transfer
of any such Indebtedness to a Person that is not either the Borrower or a
Restricted Subsidiary of the Borrower, will be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Borrower or such
Restricted Subsidiary, as the case may be, that was not permitted by this
clause (vi);
(vii) the incurrence by the Borrower or any of its Subsidiaries of
Hedging Obligations incurred not for speculative purposes;
(viii) the Guarantee by the Borrower of Indebtedness of any of its
Restricted Subsidiaries that was permitted to be incurred by another
provision of this Section 5.04;
(ix) Indebtedness in respect of bankers acceptances, letters of
credit and performance or surety bonds issued for the account of the
Borrower or any of its Restricted Subsidiaries in the ordinary course of
business in amounts and for the purposes customary in the Borrower's
industry, in each case only to the extent that such incurrence does not
result in the incurrence of any obligation to repay any borrowed money;
(x) Indebtedness arising from any agreement providing for
indemnities, Guarantees, purchase price adjustments, holdbacks,
contingency payment obligations based on the performance of the acquired
or disposed assets or similar obligations (other than Guarantees of
Indebtedness) incurred by any Person in connection with the acquisition or
disposition of assets;
(xi) the incurrence by the Borrower or any of its Restricted
Subsidiaries of Acquired Debt if the Fixed Charge Coverage Ratio for the
Borrower's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date
of incurrence of Acquired Debt (the "Relevant Fixed Charge Coverage
Ratio") determined immediately after giving effect to such incurrence and
the related acquisition (including through a merger, consolidation or
otherwise) is higher than the Relevant Fixed Charge Coverage Ratio
determined immediately before giving effect to such incurrence and the
related acquisition;
(xii) the incurrence by the Borrower or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal amount
(or accreted value, as applicable) at any time outstanding, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or
replace any Indebtedness incurred pursuant to this clause (xii), not to
exceed $500 million; and
(xiii) the incurrence of Non-Recourse Indebtedness by a Project
Finance Subsidiary or International Project Finance Subsidiary; provided
that if any Non-Recourse Indebtedness of a Project Finance Subsidiary or
International Project Finance Subsidiary shall cease at any time to
constitute Non-Recourse Indebtedness, such event will be deemed to
constitute an incurrence of Indebtedness not covered by this clause
(xiii).
(c) If any Non-Recourse Indebtedness of an Unrestricted Subsidiary
shall at any time cease to constitute Non-Recourse Indebtedness or such
Unrestricted Subsidiary shall be redesignated a Restricted Subsidiary, such
event will be deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary.
(d) For purposes of determining compliance with this Section 5.04:
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(i) in the event that an item of proposed Indebtedness (including
Acquired Debt) meets the criteria of more than one of the categories of
Permitted Debt described in clauses (i) through (xiii) of paragraph (b)
above, or is entitled to be incurred pursuant to paragraph (a) of this
Section 5.04, the Borrower will be permitted to classify (or later
classify or reclassify in whole or in part in its sole discretion) such
item of Indebtedness in any manner that complies with this Section 5.04;
(ii) the accrual of interest, the accretion or amortization of
original issue discount, the payment of interest on any Indebtedness in
the form of additional Indebtedness with the same terms, and the payment
of dividends on Disqualified Stock in the form of additional shares of the
same class of Disqualified Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this
Section 5.04; provided, in each such case, that, to the extent applicable,
the amount thereof is included in the computation of Fixed Charges of the
Borrower as accrued; and
(iii) for the purposes of determining compliance with any
dollar-denominated restriction on the incurrence of Indebtedness
denominated in a foreign currency, the dollar-equivalent principal amount
of such Indebtedness incurred pursuant thereto shall be calculated based
on the relevant currency exchange rate in effect on the date that such
Indebtedness was incurred.
SECTION 5.05. Limitation On Liens. The Borrower will not, and will
not permit any of its Restricted Subsidiaries to, create, incur, assume or
otherwise cause or suffer to exist or become effective any Lien of any kind
securing Indebtedness or Attributable Debt (other than Permitted Liens) upon any
of their property or assets, now owned or hereafter acquired, unless this
Agreement and all payments due under this Agreement are secured on an equal and
ratable basis with the obligations so secured until such time as such
obligations are no longer secured by a Lien or, in the case of any obligation so
secured that is expressly subordinated to this Agreement, by a Lien prior to any
Liens securing any and all obligations thereby secured for so long as any such
obligations shall be so secured.
SECTION 5.06. Limitation On Dividend And Other Payment Restrictions
Affecting Subsidiaries. (a) The Borrower will not, and will not permit any of
its Restricted Subsidiaries to, directly or indirectly, create or permit to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on its Capital
Stock to the Borrower or any of its Subsidiaries, or with respect to any
other interest or participation in, or measured by, its profits, or pay
any indebtedness owed to the Borrower or any of its Restricted
Subsidiaries;
(ii) make loans or advances to the Borrower or any of its
Restricted Subsidiaries; or
(iii) transfer any of its properties or assets to the Borrower or
any of its Restricted Subsidiaries.
(b) Notwithstanding the foregoing, the preceding restrictions will
not apply to encumbrances or restrictions existing under or by reason of:
(i) agreements governing Existing Indebtedness and the Credit
Facilities in effect on the date hereof and other customary encumbrances
and restrictions existing on or after the date hereof that are not more
restrictive in any material respect, taken as a whole, with respect to
such
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dividend and other payment restrictions than those contained in such
agreements on the date hereof (provided that the application of such
restrictions and encumbrances to additional Restricted Subsidiaries not
subject thereto on the date hereof shall not be deemed to make such
restrictions and encumbrances more restrictive);
(ii) this Agreement and other customary encumbrances and
restrictions existing in indentures and notes after the date hereof that
are not more restrictive, in any material respect, taken as a whole, with
respect to such dividend and other payment restrictions than those
contained in this Agreement;
(iii) applicable law (including without limitation, rules,
regulations and agreements with regulatory authorities);
(iv) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Borrower or any of its Restricted Subsidiaries as
in effect at the time of such acquisition (except to the extent such
Indebtedness or Capital Stock was incurred in connection with or in
contemplation of such acquisition), which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so
acquired; provided that, in the case of Indebtedness, such Indebtedness
was permitted by the terms of this Agreement to be incurred;
(v) customary non-assignment provisions in leases entered into in
the ordinary course of business and consistent with past practices;
(vi) Capital Lease Obligations, mortgage financings or purchase
money obligations for property acquired in the ordinary course of business
that impose restrictions on that property of the nature described in
clause (iii) of paragraph (a) of this Section 5.06;
(vii) any agreement for the sale or other disposition of a
Restricted Subsidiary that restricts distributions by that Restricted
Subsidiary pending its sale or other disposition;
(viii) Permitted Refinancing Indebtedness; provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive in any material respect,
taken as a whole, than those contained in the agreements governing the
Indebtedness being refinanced;
(ix) Liens securing Indebtedness otherwise permitted to be incurred
under the provisions of Section 5.05 hereof that limit the right of the
debtor to dispose of the assets subject to such Liens;
(x) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements, asset sale agreements,
stock sale agreements and other similar agreements; provided that such
restrictions apply only to the assets or property subject to such joint
venture or similar agreement or to the assets or property being sold, as
the case may be;
(xi) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
and
(xii) restrictions applicable solely to Project Finance Subsidiaries
or International Project Finance Subsidiaries pursuant to the terms of
their Non-Recourse Indebtedness.
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SECTION 5.07. Repayment Of Advances Upon A Change Of Control.
(a) The Borrower shall notify the Agent and each Lender of the
occurrence of a Change of Control not later than 30 days following its
occurrence (such notification, a "Change of Control Offer") and shall designate
a Business Day not less than 28 Business Days or more than 60 days after the
date notice of such occurrence is provided (or, if Borrower has not yet complied
with paragraph (c), after the first date such paragraph is complied with) as the
"Change of Control Payment Date".
(b) Each Lender shall be entitled to request, by providing notice to
the Agent no later than three Business Days prior to the Change of Control
Payment Date, that (i) such Lender's Revolving Credit Commitment and Letter of
Credit Commitment be reduced, in whole or in part, on the Change of Control
Payment Date in the amount specified by such Lender, and (ii) the Advances
outstanding on the Change of Control Payment Date (in an amount not to exceed
such Commitment reduction), interest thereon to the date of payment and other
amounts payable under this Agreement to such Lender with respect to such
Advances be due and payable on the Change of Control Payment Date, whereupon
such Advances, such interest and such amounts shall become and be due and
payable together with the Change of Control Premium for such Commitment
reduction, and such Commitments shall be reduced, on the Change of Control
Payment Date, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower. The Agent shall
notify the Borrower of the aggregate amount of Commitment to be reduced on the
Change of Control Payment Date pursuant to this provision (the "Change of
Control Reduction Amount"). Commencing on the date of the occurrence of a Change
of Control and ending at such time as the Borrower has paid all amounts owing
with respect to the Change of Control Payment Date, the Borrower shall not be
entitled to repay Revolving Credit Advances pursuant to Section 2.09.
(c) Prior to complying with any of the provisions of this Section,
but in any event within 30 days following a Change of Control, if the Borrower
is subject to any agreement evidencing Indebtedness (or commitments to extend
Indebtedness) that prohibits prepayment of the Advances pursuant to a Change of
Control, the Borrower will either repay all such outstanding Indebtedness of the
Borrower (and terminate all commitments to extend such Indebtedness), or obtain
the requisite consents, if any, under all agreements governing such Indebtedness
or commitments to permit the repayment of Advances required by paragraph (b) of
this Section 5.07. The Borrower shall first comply with this paragraph (c)
before it shall be required to designate a Change of Control Payment Date
pursuant to paragraph (a) or repay Advances pursuant to paragraph (b). The
Borrower's failure to comply with paragraph (c) may (with notice and lapse of
time) constitute an Event of Default under Section 6.01(d) but shall not
constitute an Event of Default under Section 6.01(c).
(d) The Borrower will comply with Rule 14e-1 under the Exchange Act
and any other securities laws or regulations thereunder to the extent such laws
or regulations are applicable in connection with the redemption by their issuer
of any securities representing beneficial interests in or otherwise related to
this Agreement as a result of a Change of Control, and the above procedures will
be deemed modified as necessary to permit such compliance.
SECTION 5.08. Limitation On Transactions With Affiliates. (a) The
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate of the Borrower
(each, an "Affiliate Transaction"), unless:
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(i) the Affiliate Transaction is on terms that are no less
favorable to the Borrower or the relevant Restricted Subsidiary than those
that would have been obtained in a comparable transaction by the Borrower
or such Restricted Subsidiary with an unrelated Person; and
(ii) the Borrower delivers to the Agent:
(1) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $50 million, a resolution of the Borrower's Board of
Directors set forth in an Officers' Certificate certifying that such
Affiliate Transaction complies with this Section 5.08 and that such
Affiliate Transaction has been approved by a majority of the
disinterested members of such Board of Directors; and
(2) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $150 million, an opinion as to the fairness to the
Borrower or such Restricted Subsidiary of such Affiliate Transaction
from a financial point of view issued by an accounting, appraisal or
investment banking firm of national standing.
(b) The following items will not be deemed to be Affiliate
Transactions and, therefore, will not be subject to the provisions of paragraph
(a):
(i) any employment agreement or director's engagement agreement,
employee benefit plan, officer indemnification agreement or similar
agreement entered into by the Borrower or any of its Restricted
Subsidiaries in the ordinary course of business of the Borrower or such
Restricted Subsidiary;
(ii) transactions between or among the Borrower and/or its
Restricted Subsidiaries;
(iii) transactions with a Person that is an Affiliate of the
Borrower solely because the Borrower owns, directly or through a
Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(iv) payment of reasonable directors fees and provision to
directors, officers and employees of customary indemnities and customary
benefits pursuant to employee benefit plans and similar arrangements;
(v) sales of Equity Interests (other than Disqualified Stock) to
Affiliates of the Borrower;
(vi) (A) corporate sharing agreements among the Borrower and its
Subsidiaries with respect to tax sharing and general overhead and other
administrative matters and (B) any other intercompany arrangements
disclosed or described in the Borrower's report on Form 10-K for the
fiscal year ended December 31, 2003 (including the exhibits thereto), all
as in effect on the date hereof, and any amendment or replacement of any
of the foregoing so long as such amendment or replacement agreement is not
less advantageous to the Borrower in any material respect than the
agreement so amended or replaced, as such agreement was in effect on the
date hereof;
(vii) transactions entered into as part of a Permitted Receivables
Financing;
(viii) Restricted Payments that are permitted by the provisions of
Section 5.03 hereof;
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(ix) loans or advances to employees in the ordinary course of
business not to exceed $10 million in the aggregate outstanding at any one
time; and
(x) any agreement, instrument or arrangement as in effect on the
date hereof or any amendment thereto or any transaction contemplated
thereby (including pursuant to any amendment thereto) in any replacement
agreement thereto so long as any such amendment or replacement agreement
is not more disadvantageous to the Lenders in any material respect than
the original agreement as in effect on the date hereof as determined in
good faith by the Chief Financial Officer or other senior financial
officer of the Borrower.
SECTION 5.09. Designation Of Restricted And Unrestricted
Subsidiaries. The Board of Directors of the Borrower may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would
not cause a Default; provided that in no event will the material businesses
currently operated by ▇▇▇▇▇▇▇▇ Production Holdings LLC or ▇▇▇▇▇▇▇▇ Gas Pipeline
Company LLC be transferred to or held by an Unrestricted Subsidiary. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate
Fair Market Value of all outstanding Investments owned by the Borrower and its
Restricted Subsidiaries in the Subsidiary properly designated will be deemed to
be an Investment made as of the time of the designation and will reduce the
amount available for Restricted Payments under any applicable provision of
Section 5.03 or Permitted Investments, as determined by the Borrower. That
designation will only be permitted if the Investment would be permitted at that
time and if the Restricted Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary. The Board of Directors of the Borrower may redesignate
any Unrestricted Subsidiary to be a Restricted Subsidiary if the redesignation
would not cause a Default.
SECTION 5.10. Limitation On Sale And Leaseback Transactions. The
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
enter into any Sale and Leaseback Transaction; provided that the Borrower or any
of its Restricted Subsidiaries may enter into a Sale and Leaseback Transaction
if:
(a) the Borrower could have incurred Indebtedness in an amount equal
to the Attributable Debt relating to such Sale and Leaseback Transaction under
the Fixed Charge Coverage Ratio test in Section 5.04(a) hereof;
(b) immediately after giving effect to such Sale and Leaseback
Transaction, the aggregate outstanding Attributable Debt with respect to all
Sale and Leaseback Transactions by the Borrower and its Restricted Subsidiaries
does not exceed 10% of the Consolidated Net Tangible Assets of the Borrower; and
(c) the gross cash proceeds of such Sale and Leaseback Transaction
are at least equal to the Fair Market Value, as determined in good faith by the
Board of Directors and set forth in an Officers' Certificate, if such
determination exceeds $10 million, delivered to the Agent, of the property that
is the subject of that Sale and Leaseback Transaction;
provided, however, that the foregoing clauses (a) and (b) shall no longer be
applicable after any Investment Grade Date.
SECTION 5.11. Business Activities. The Borrower will not, and will
not permit any Restricted Subsidiary to, engage in any business other than
Permitted Businesses, except to such extent as would not be material to the
Borrower and its Subsidiaries taken as a whole.
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SECTION 5.12. Payments For Consent. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, pay or cause to
be paid any consideration to or for the benefit of any Lender, participant or
sub-participant or any holder of a beneficial interest in the foregoing, for or
as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Agreement or the Notes unless such consideration is offered
to be paid and is paid to all Lenders, participants or sub-participants or
holders of a beneficial interest in the foregoing that consent, waive or agree
to amend in the time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.
SECTION 5.13. Limitation On Mergers, Consolidations And Sales Of
Assets. (a) The Borrower may not, directly or indirectly: (1) consolidate or
merge with or into another Person (whether or not the Borrower is the surviving
Person); or (2) sell, assign, transfer, convey or otherwise dispose of all or
substantially all of the properties or assets of the Borrower and its Restricted
Subsidiaries taken as a whole, in one or more related transactions, to another
Person unless:
(i) either: (A) the Borrower is the surviving Person; or (B) the
Person formed by or surviving any such consolidation or merger (if other
than the Borrower) or to which such sale, assignment, transfer, conveyance
or other disposition has been made is a Person organized or existing under
the laws of the United States, any state of the United States or the
District of Columbia;
(ii) the Person formed by or surviving any such consolidation or
merger (if other than the Borrower) or the Person to which such sale,
assignment, transfer, conveyance or other disposition has been made
expressly assumes in form reasonably satisfactory to the Agent all the
obligations of the Borrower under this Agreement, the Notes, the L/C
Related Documents and any other related agreements specified by the Agent
in its reasonable discretion and delivers to the Agent an Opinion of
Counsel to the effect that each of those agreements has been duly
authorized, executed and delivered by such Person and constitutes a valid
and binding obligation of such Person, enforceable against such Person in
accordance with its terms (subject to customary exceptions);
(iii) immediately after such transaction no Default or Event of
Default exists; and
(iv) the Borrower or the Person formed by or surviving any such
consolidation or merger (if other than the Borrower), or to which such
sale, assignment, transfer, conveyance or other disposition has been made
will, on the date of such transaction after giving pro forma effect
thereto and any related financing transactions as if the same had occurred
at the beginning of the applicable four-quarter period, be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in paragraph (a) of Section 5.04
hereof; provided, however, that this clause (iv) shall no longer be
applicable from and after any Investment Grade Date.
(b) Notwithstanding the foregoing, the Borrower may not, directly or
indirectly, lease all or substantially all of its properties or assets, in one
or more related transactions, to any other Person.
(c) Clause (iv) of paragraph (a) above will not apply to (x) a
consolidation or merger or any sale, assignment, transfer, conveyance or other
disposition of assets between or among the Borrower and any of its Restricted
Subsidiaries or (y) a merger between the Borrower with an Affiliate solely for
the purpose of reincorporating the Borrower or reforming in another
jurisdiction; provided that such consolidation or merger or any sale,
assignment, transfer, conveyance or other disposition of assets is not
materially detrimental to the Lenders.
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SECTION 5.14. Limit on Asset Sales.
(a) The Borrower will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(i) the Borrower (or the Restricted Subsidiary, as the case may
be) exchanges consideration at the time of the Asset Sale at least equal
to the Fair Market Value of the assets or Equity Interests issued or sold
or otherwise disposed of;
(ii) for any agreement to make an Asset Sale that is entered into
after the date hereof, the Fair Market Value is determined by (a) an
executive officer of the Borrower if the value is more than $10 million
but less than $75 million or (b) the Borrower's Board of Directors if the
value is $75 million or more, as evidenced by a Board Resolution; and
(iii) the consideration received in the Asset Sale by the Borrower
or such Restricted Subsidiary is in the form of (a) cash or Cash
Equivalents or (b) other property provided that such other property, taken
together with all other property received for Asset Sales under this
clause (b) since the date hereof, has a Fair Market Value of no more than
10% of the Consolidated Net Tangible Assets of the Borrower. For purposes
of this provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Borrower's or such
Restricted Subsidiary's most recent balance sheet, of the Borrower
or any Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Advances)
that are assumed by the transferee of any such assets pursuant to a
customary novation agreement that releases the Borrower or such
Subsidiary from further liability;
(2) any securities, notes or other obligations received by the
Borrower or any such Restricted Subsidiary from such transferee that
are converted by the Borrower or such Restricted Subsidiary into
cash within 180 days of the relevant Asset Sale, to the extent of
the cash received in that conversion; and
(3) property or assets received as consideration for such
Asset Sale that would otherwise constitute a permitted application
of Net Proceeds (or other cash in such amount) under clauses (ii),
(iii) or (iv) under paragraph (b) of this Section 5.14.
(b) Within 365 days after the receipt of any Net Proceeds from an
Asset Sale, the Borrower or any of its Restricted Subsidiaries may apply
an amount of cash equal to the amount of such Net Proceeds at its option:
(i) to repay or prepay Indebtedness of the Borrower or any
Restricted Subsidiary other than Indebtedness of the Borrower subordinated
in right of payment to the Borrower's obligations hereunder;
(ii) to acquire all or substantially all of the assets of, or a
majority of the Voting Stock of, another Permitted Business;
(iii) to make a capital expenditure; or
(iv) to acquire other long-term assets that are used or useful in a
Permitted Business.
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For purposes of Section 5.14(b) through (f), cash or Cash
Equivalents received by the Borrower and its Restricted Subsidiaries pursuant to
a transaction excluded from the definition of Asset Sale pursuant to clause (12)
of the definition thereof will be deemed to be Net Proceeds.
(c) Subject to paragraph (e) of this Section 5.14, to the extent
that the Borrower and its Restricted Subsidiaries do not apply an amount
of cash equal to the amount of such Net Proceeds of any Asset Sale during
such period as provided in paragraph (b) of this Section 5.14, the amount
not so applied (excluding Net Proceeds of any Asset Sale to the extent of
the amount of acquisitions or capital expenditures described under clauses
(ii), (iii) or (iv) of paragraph (b) of this Section 5.14 made during the
365 days preceding the receipt of such Net Proceeds (other than any
portion of such amount that was funded with Net Proceeds of any other
Asset Sale or that has been allocated to exclude Net Proceeds of any other
Asset Sales under this Section 5.14)) will constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds exceeds $50 million, the
Borrower will make an offer to all Lenders and all holders of other
Indebtedness that is pari passu with the Advances containing provisions
similar to those set forth in this Section 5.14 with respect to offers to
prepay, purchase or redeem with the proceeds of sales of assets to prepay,
purchase or redeem, as applicable, the maximum principal amount of the
Advances and aggregate Available Amount of all outstanding Letters of
Credit (the Advances and such Available Amount is referred to collectively
as "Asset Sale Obligations") and such other pari passu Indebtedness that
may be prepaid, purchased or redeemed out of the Excess Proceeds (such an
offer, an "Asset Sale Offer"). The prepayment amount with respect to the
prepaid Asset Sale Obligations in any Asset Sale Offer will be equal to
100% of the principal amount or Available Amount of such Asset Sale
Obligations plus accrued and unpaid interest to the date of prepayment,
and will be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Borrower may use those Excess
Proceeds for any purpose not otherwise prohibited by this Agreement. If
the aggregate principal amount or Available Amount of Asset Sale
Obligations for which the Lenders have elected prepayment and other pari
passu Indebtedness tendered into such Asset Sale Offer exceeds the amount
of Excess Proceeds, the Excess Proceeds will be allocated by the Borrower
to such Asset Sale Obligations and such other pari passu Indebtedness on a
pro rata basis (based upon the respective principal amounts or Available
Amount of such Asset Sale Obligations and such other pari passu
Indebtedness tendered into such Asset Sale Offer). Upon completion of each
Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) Prior to making any Asset Sale Offer, but in any event within 30
days following the date on which such Asset Sale Offer would otherwise be
required, if the Borrower is subject to any agreement evidencing
Indebtedness (or commitments to extend Indebtedness) that prohibits
prepayment of the Asset Sale Obligations pursuant to an Asset Sale Offer,
the Borrower will either repay all such outstanding Indebtedness of the
Borrower (and terminate all commitments to extend such Indebtedness) or
obtain the requisite consents, if any, under all agreements governing such
Indebtedness or commitments to permit the prepayment of Asset Sale
Obligations required by this Section 5.14. The Borrower shall first comply
with this paragraph (d) before it shall be required to make an Asset Sale
Offer or to prepay Asset Sale Obligations pursuant to this Section 5.14.
The Borrower's failure to comply with this paragraph (d) may (with notice
and lapse of time) constitute an Event of Default under Section 6.01(d)
but shall not constitute an Event of Default under Section 6.01(c).
(e) In the event that, pursuant to this Section 5.14, the Borrower
is required to commence an Asset Sale Offer, it shall follow the
procedures specified below.
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The Asset Sale Offer shall be made to all Lenders and to all holders
of other Indebtedness that is pari passu with the Advances to the extent
set forth above in this Section 5.14. The Asset Sale Offer will remain
open for a period of at least 25 Business Days following its commencement
and not more than 30 Business Days, except to the extent that a longer
period is required by applicable law (the "Offer Period"). On the third
Business Day after the termination of the Offer Period (the "Purchase
Date"), the Borrower shall apply all Excess Proceeds (the "Offer Amount")
to the prepayment of Asset Sale Obligations and such other pari passu
Indebtedness (on a pro rata basis, if applicable, as set forth above in
this Section 5.14) or, if less than the Offer Amount has been tendered,
all Asset Sale Obligations for which the Lenders have elected prepayment
and other Indebtedness tendered in response to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Borrower will
notify the Agent and each of the Lenders. The notice will contain all
instructions and materials necessary to enable such Lenders to elect
prepayment of Asset Sale Obligations pursuant to the Asset Sale Offer. The
notice, which will govern the terms of the Asset Sale Offer, will state:
(i) that the Asset Sale Offer is being made pursuant to this
Section 5.14 and the length of time the Asset Sale Offer will remain open;
(ii) the Offer Amount, the purchase price and the Purchase Date;
(iii) that any Advance for which prepayment is not elected or that
is not accepted for prepayment will continue to accrue interest;
(iv) that, unless the Borrower defaults in making such payment, any
Advance accepted for prepayment pursuant to the Asset Sale Offer will
cease to accrue interest after the Purchase Date;
(v) that Lenders electing to have an Asset Sale Obligation prepaid
pursuant to an Asset Sale Offer may elect to have Asset Sale Obligations
prepaid in integral multiples of $1,000 only, and may elect prepayment in
whole or in part of such Lender's Asset Sale Obligations;
(vi) that Lenders will be entitled to withdraw their election if
the Borrower and the Agent receives, not later than the expiration of the
Offer Period, a telex, facsimile transmission or letter setting forth the
name of the Lender, the principal amount or Available Amount of the Asset
Sale Obligations for which the Lender has elected prepayment and a
statement that such Lender is withdrawing its election to have such Asset
Sale Obligation repaid, in whole or in part; and
(vii) that, if the aggregate principal amount of Asset Sale
Obligations for which prepayment is elected and other pari passu
Indebtedness surrendered by holders exceeds the Offer Amount, the Borrower
will select the Asset Sale Obligations and other pari passu Indebtedness
to be prepaid, purchased or redeemed on a pro rata basis based on the
principal amount or Available Amount of such Asset Sale Obligations and
such other pari passu Indebtedness surrendered (with such adjustments as
may be deemed appropriate so that only Asset Sale Obligations in
denominations of $1,000, or integral multiples thereof, will be prepaid).
Commencing on the date Borrower commences an Asset Sale Offer and ending
at such time as the Borrower has paid all amounts owing with respect to
the Purchase Date, the Borrower shall not be entitled to repay Revolving
Credit Advances pursuant to Section 2.09. On the Purchase Date, each
Lender's Revolving Credit Commitment and Letter of Credit Commitment shall
be reduced by the amount of Asset Sale Obligations of such Lender accepted
by the Borrower for
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prepayment (the "Asset Sale Reduction Amount") and such Asset Sale
Obligations shall become and be due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby
expressly waived by the Borrower.
On or before the Purchase Date, the Borrower shall, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Asset Sale Obligations or portions thereof for which prepayment
is elected pursuant to the Asset Sale Offer, or if less than the Offer
Amount has been elected or tendered, all Asset Sale Obligations for which
prepayment is elected, and shall deliver to the Agent an Officers'
Certificate stating that such Asset Sale Obligations or portions thereof
were accepted for payment by the Borrower in accordance with the terms of
this Section 5.14. The Borrower shall on the Purchase Date prepay an
amount equal to the purchase price of the Asset Sale Obligations for which
prepayment is elected by such Lender and accepted by the Borrower for
prepayment. The Borrower will notify each Lender of the results of the
Asset Sale Offer on the Business Day immediately following the termination
of the Offer Period.
(f) The Borrower will comply with Rule 14e-1 under the Exchange Act
and any other securities laws or regulations thereunder to the extent such
laws or regulations are applicable in connection with the redemption by
their issuer of any securities representing beneficial interests in or
otherwise related to this Agreement as a result of an Asset Sale Offer,
and the above procedures will deemed modified as necessary to permit such
compliance.
SECTION 5.15. Covenant Termination. So long as any Revolving Credit
Advance shall remain unpaid, any Letter of Credit or reimbursement obligation
shall remain outstanding or any Revolving Credit Commitment or Letter of Credit
Commitment shall remain outstanding, the Borrower will comply with Sections 5.01
through 5.14 of this Agreement. From and after the first date after the date
hereof on which the Specified Security has an Investment Grade Rating from both
Rating Agencies and no Default or Event of Default has occurred and is
continuing with respect to this Agreement (the "Investment Grade Date"), the
Borrower and its Restricted Subsidiaries will no longer be subject to Sections
5.03, 5.04, 5.06, 5.08, 5.09, 5.11, clause (a)(iv) of Section 5.13 and Section
5.14 hereof. The Borrower shall give the Agent prompt notice in an Officers'
Certificate of the occurrence of the Investment Grade Date (provided that any
failure to provide such notice shall not have any effect on the immediately
preceding sentence).
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) failure by the Borrower to pay any principal of any Advance or
Change of Control Premium when the same becomes due and payable; or
(b) failure by the Borrower to pay: (i) any Facility Fees; (ii) any
interest on any Advance; (iii) any amount payable in respect of any Letter of
Credit Agreement; or (iv) any other payment of fees or other amounts payable
under this Agreement or any Note, in each case within thirty days after the same
becomes due and payable; or
(c) failure by the Borrower to make payments required by Sections
5.07 or 5.14 hereof in accordance with the terms thereof, or failure of the
Borrower to comply with the provisions of Section 5.13 hereof; or
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(d) failure by the Borrower or any of its Restricted Subsidiaries
for 60 days after notice, from the Agent or the Notice Lenders (with a copy to
the Agent), to perform or observe any term, covenant or agreement contained in
this Agreement on its, or their, as applicable, part to be performed or
observed; or
(e) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Borrower or any of its Restricted
Subsidiaries (other than Non-Recourse Indebtedness of a Project Finance
Subsidiary or International Project Finance Subsidiary) or the payment of which
is Guaranteed by the Borrower or any of its Restricted Subsidiaries (other than
a Guarantee arising solely from the imposition of a Lien on Capital Stock
pursuant to clause (20) of the definition of "Permitted Liens"), whether such
Indebtedness or Guarantee now exists, or is created after the date hereof, if
that default:
(i) is caused by a failure of the Borrower or any Subsidiary of the
Borrower to pay principal of, or interest or premium, if any, on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default"); or
(ii) results in the acceleration of such Indebtedness prior to its
express maturity,
and, in each case, the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$100 million or more; or
(f) failure by the Borrower or any of its Restricted Subsidiaries to
pay final judgments aggregating in excess of $100 million, which judgments are
not paid, discharged or stayed for a period of 60 days; provided that this
clause (f) shall not apply to judgments against any Project Finance Subsidiary
or International Project Finance Subsidiary whose Indebtedness is solely
Non-Recourse Indebtedness; or
(g) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Borrower or any of its
Significant Subsidiaries (or any group of Subsidiaries that, taken together,
would constitute a Significant Subsidiary) in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Borrower or any of its
Significant Subsidiaries (or any group of Subsidiaries that, taken together,
would constitute a Significant Subsidiary) a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Borrower or any of its Significant
Subsidiaries (or any group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary) under any applicable Federal or State law,
or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Borrower or any of its Significant Subsidiaries
(or any group of Subsidiaries that, taken together, would constitute a
Significant Subsidiary) or of any substantial part of the property of the
Borrower or any of its Significant Subsidiaries, or ordering the winding up or
liquidation of the affairs of the Borrower or any of its Significant
Subsidiaries (or any group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary), and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect for a
period of 90 consecutive days; provided that this clause (g) shall not apply to
any Project Finance Subsidiary or International Project Finance Subsidiary whose
Indebtedness is solely Non-Recourse Indebtedness; or
(h) the commencement by the Borrower or any of its Significant
Subsidiaries (or any group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary) of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by
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it to the entry of a decree or order for relief in respect of the Borrower or
any of its Significant Subsidiaries (or any group of Subsidiaries that, taken
together, would constitute a Significant Subsidiary) in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Borrower or any of
its Significant Subsidiaries (or any group of Subsidiaries that, taken together,
would constitute a Significant Subsidiary) or of any substantial part of the
property of the Borrower or any of its Significant Subsidiaries (or any group of
Subsidiaries that, taken together, would constitute a Significant Subsidiary),
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Borrower or any of its
Significant Subsidiaries (or any group of Subsidiaries that, taken together,
would constitute a Significant Subsidiary) in furtherance of any such action;
provided that this clause (h) shall not apply to any Project Finance Subsidiary
or International Project Finance Subsidiary whose Indebtedness is solely
Non-Recourse Indebtedness;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Notice Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances (other than Revolving Credit Advances
by an Issuing Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing
Banks to issue Letters of Credit to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with the consent, of
the Notice Lenders, by notice to the Borrower, declare the Advances, all
interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Advances, all such interest and all
such amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower; provided, that any time after a declaration of
acceleration described in clause (ii) has occurred and before a judgment for
payment of the money due has been obtained by any Lender, the Required Lenders,
by written notice to the Borrower and the Agent, may rescind and annul such
declaration and its consequences (but not the termination of the obligations
described in clause (i)) if the rescission would not conflict with any judgment
or decree of a court of competent jurisdiction, all existing Events of Default,
other than the nonpayment of the principal of any Advance and interest on any
Advances that have become due solely by the declaration of acceleration, have
been cured or waived, and no such rescission shall affect any subsequent Default
or impair any right consequent thereon; provided, however, that in the event of
an actual or deemed entry of an order for relief with respect to the Borrower
under the United States Bankruptcy Code of 1978, as amended, (A) the obligation
of each Lender to make Advances (other than Revolving Credit Advances by an
Issuing Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing Banks
to issue Letters of Credit shall automatically be terminated and (B) the
Advances, all such interest and all such amounts shall automatically become and
be due and payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by the Borrower.
SECTION 6.02. Notice of Default or Event of Default. The Agent shall
not be deemed to have knowledge of a Default or Event of Default or of the
identity of a Significant Subsidiary (or any group of Subsidiaries that, taken
together, would constitute a Significant Subsidiary) unless a notice of such
Default or Event of Default or of the identity of such Significant Subsidiary is
received by the Agent pursuant to Section 9.01. The Borrower shall provide the
Agent and the Lenders with notice in reasonable detail of a Default or Event of
Default promptly after becoming aware of the occurrence thereof.
SECTION 6.03. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Agent may with the consent, or shall at the
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request, of the Required Lenders, irrespective of whether it is taking any of
the actions described in Section 6.01 or otherwise, make demand upon the
Borrower to, and forthwith upon such demand the Borrower will, make such
arrangements in respect of the outstanding Letters of Credit as shall be
acceptable to the Required Lenders.
SECTION 6.04. Waiver Of Existing Defaults. Subject to Section 8.01
of this Agreement, the Required Lenders by notice to the Agent may waive an
existing Default or Event of Default and its consequences, except (1) a
continuing Default or Event of Default with respect to Sections 6.01(a) and (b)
of this Agreement or (2) a continuing default in respect of a provision that
under Section 8.01 of this Agreement cannot be amended without the consent of
each Lender affected. Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Agreement; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender (in its
capacities as a Lender and an Issuing Bank (as applicable)) hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement, other than any notice the Borrower is obligated to
provide directly to such Lender.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the Lender that made any Advance as the holder of the indebtedness resulting
therefrom until the Agent receives and accepts an Assignment and Acceptance
entered into by such Lender, as assignor, and an Eligible Assignee, as assignee,
as provided in Section 9.06; (ii) may consult with legal counsel (including
counsel for the Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance, observance or satisfaction of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or the existence at any
time of any Default or to inspect the property (including the books and records)
of the Borrower; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, this Agreement or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing
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(which may be by telecopier, telegram or telex) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and any Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders. The Agent
shall have no duty to disclose information obtained or received by it or any of
its Affiliates relating to the Borrower or its Subsidiaries to the extent such
information was obtained or received in any capacity other than as Agent.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any other Lender
and based on publicly available information relating to the Borrower, the
financial statements referred to in Section 4.01 and such other 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 Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 7.05. Indemnification. (a) Each Lender severally agrees to
indemnify the Agent (to the extent not reimbursed by the Borrower), from and
against such Lender's Pro Rata Share of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement
(collectively, the "Indemnified Costs"), provided that no Lender shall be liable
for any portion of the Indemnified Costs resulting from the Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its Pro Rata Share
of any out-of-pocket expenses (including reasonable counsel fees) incurred by
the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the Agent
is not reimbursed for such expenses by the Borrower. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
(b) Each Lender severally agrees to indemnify the Issuing Banks (to
the extent not promptly reimbursed by the Borrower) from and against such
Lender's Pro Rata Share of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against any such Issuing Bank in any way relating to or arising out of
this Agreement or any action taken or omitted by such Issuing Bank hereunder or
in connection herewith; provided, however, that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Issuing Bank's gross negligence or willful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction. Without limitation
of the foregoing, each Lender agrees to reimburse any such Issuing Bank promptly
upon demand for its Pro Rata Share of any costs and expenses (including, without
limitation, fees and
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expenses of counsel) payable by the Borrower under Section 9.03, to the extent
that such Issuing Bank is not promptly reimbursed for such costs and expenses by
the Borrower.
(c) The failure of any Lender to reimburse the Agent or any Issuing
Bank, as the case may be, promptly upon demand for its Pro Rata Share of any
amount required to be paid by the Lenders to the Agent or such Issuing Bank, as
the case may be, as provided herein shall not relieve any other Lender of its
obligation hereunder to reimburse the Agent or such Issuing Bank, as the case
may be, for its Pro Rata Share of such amount, but no Lender shall be
responsible for the failure of any other Lender to reimburse the Agent or any
such Issuing Bank, as the case may be, for such other Lender's Pro Rata Share of
such amount. Without prejudice to the survival of any other agreement of any
Lender hereunder, the agreement and obligations of each Lender contained in this
Section 7.05 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under the Notes. The Agent and each Issuing
Bank agrees to return to the Lenders their respective Pro Rata Shares of any
amounts paid under this Section 7.05 that are subsequently reimbursed by the
Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof having a
combined capital and surplus of at least $500,000,000 and a long-term credit
rating of at ▇▇▇▇▇ "▇▇" from ▇▇▇▇▇'▇ and "A-" from S&P. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under this Agreement. After
any retiring Agent's resignation or removal hereunder as Agent, the provisions
of this Article VII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement.
ARTICLE VIII
AMENDMENTS
SECTION 8.01. Amendments, Etc. with consent of Lenders. Except as
provided in Section 8.02, no amendment or waiver of any provision of this
Agreement or the Revolving Credit Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Sections 3.01 and 3.02, (b) subject the
Lenders to any additional obligations, (c) increase the Commitments of the
Lenders, (d) reduce the principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder, (e) postpone any date
fixed for any payment of principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder, (f) change the
percentage of the Revolving Credit Commitments, the aggregate Available Amount
of outstanding Letters of Credit or of the aggregate unpaid principal amount of
the Revolving Credit Advances, or the number of Lenders, that shall be required
for the Lenders or any of them to take any action hereunder or (g) amend this
Section 8.01 (each of clauses (a) through (g), a "Restricted Event"); and
provided further that (x) no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Lenders required above to
take such action, affect the
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rights or duties of the Agent under this Agreement or any Note and (y) no
amendment, waiver or consent shall, unless in writing and signed by the Issuing
Banks in addition to the Lenders required above to take such action, affect the
rights or obligations of the Issuing Banks in their capacities as such under
this Agreement.
SECTION 8.02. Amendments without consent of Lenders. (a) The Agent
and the Borrower, when authorized by a resolution of its Board of Directors
(which resolution may provide general terms or parameters for such action and
may provide that the specific terms of such action may be determined in
accordance with or pursuant to an Officers' Certificate), may from time to time
and at any time amend this Agreement for one or more of the following purposes:
(i) to convey, transfer, assign, mortgage or pledge to the Lenders
as security for the obligations hereunder any property or assets;
(ii) to evidence the succession of another corporation to the
Borrower, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Borrower
pursuant to Section 5.13;
(iii) to add to the covenants of the Borrower such further
covenants, restrictions, conditions or provisions as the Borrower and the
Agent shall consider to be for the protection of the Lenders, and to make
the occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions an Event
of Default permitting the enforcement of all or any of the several
remedies provided in this Agreement as herein set forth; provided, that in
respect of any such additional covenant, restriction, condition or
provision such amendment may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement
upon such an Event of Default or may limit the remedies available to the
Agent or the Lender upon such an Event of Default or may limit the right
of the Required Lenders to waive such an Event of Default; and
(iv) (x) to cure any ambiguity or to correct or supplement any
provision contained herein or in any amendment which may be defective or
inconsistent with any other provision contained herein or in any
amendment, or (y) to make any other provisions as the Borrower may deem
necessary or desirable, provided that in either case no such action shall
adversely affect the interests of the Lenders.
(b) The Agent is hereby authorized to join with the Borrower in the
execution of any such amendment, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Agent shall not be obligated to enter into any such amendment which affects the
Agent's own rights, duties or immunities under this Agreement or otherwise.
(c) Any amendment authorized by the provisions of this Section may
be executed without the consent of any Lenders.
(d) Promptly after the execution by the Borrower and the Agent of
any amendment pursuant to the provisions of Section 8.02, the Borrower and the
Agent shall give notice thereof to the Lenders. Any failure of the Borrower or
the Agent to give such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amendment.
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SECTION 8.03. Documents to Be Given to Agent. The Agent, subject to
the provisions of Article VII, may receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any amendment or waiver executed
pursuant to this Article VIII complies with the applicable provisions of this
Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed (return receipt requested), telecopied,
telegraphed, telexed or delivered, if to the Borrower, its address at The
▇▇▇▇▇▇▇▇ Companies, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇, Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇; if to any Initial
Lender, at its Domestic Lending Office specified opposite its name on Schedule I
hereto; if to any other Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender or as otherwise
notified to the Borrower; and if to the Agent, at its address at ▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Global Loans Manager; or, as
to the Borrower or the Agent, at such other address as shall be designated by
such party in a written notice to the other parties and, as to each other party,
at such other address as shall be designated by such party in a written notice
to the Borrower and the Agent. All such notices and communications shall, when
mailed, telecopied, telegraphed or telexed, be effective when deposited in the
mails, telecopied, delivered to the telegraph company or confirmed by telex
answerback, respectively, except that notices and communications to the Agent
pursuant to Article II, III, VI or VII shall not be effective until received by
the Agent. Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of a
manually executed counterpart thereof.
SECTION 9.02. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. (a) No right or remedy herein conferred upon or reserved to
the Agent or to the Lenders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
(b) No delay or omission of the Agent or of any Lender to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and every power
and remedy given by this Agreement or by law to the Agent or to the Lenders may
be exercised from time to time, and as often as shall be deemed expedient, by
the Agent or by the Lenders.
SECTION 9.03. Costs and Expenses. (a) The Borrower agrees to pay on
demand all reasonable costs and expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of outside counsel for the Agent with respect thereto and with
respect to advising the Agent as to its rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all reasonable costs and
expenses of the Agent and the Eligible Lenders, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with
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the enforcement (whether through negotiations, legal proceedings or otherwise)
of this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of outside counsel
for the Agent and each Eligible Lender in connection with the enforcement of
rights under this Section 9.03(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent,
each Eligible Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances or (ii) the actual or alleged presence of Hazardous
Materials on any property of the Borrower or any of its Subsidiaries or any
Environmental Action relating in any way to the Borrower or any of its
Subsidiaries, except to the extent such claim, damage, loss, liability or
expense has resulted from such Indemnified Party's (or any of its Affiliates)
gross negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 9.03(b)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its Subsidiaries, its
directors, shareholders or creditors or an Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The
Borrower also agrees not to assert any claim for special, indirect,
consequential or punitive damages against the Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees, attorneys
and agents, on any theory of liability, arising out of or otherwise relating to
the Notes, this Agreement, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender other
than on the last day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Sections 2.07, 2.09 or 2.11, acceleration of
the maturity of the Notes pursuant to Section 6.01 or for any other reason, the
Borrower shall, upon demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.10 and 9.03 shall survive the payment in full of principal, interest
and all other amounts payable hereunder and under the Notes and the termination
in whole of any Commitment hereunder.
SECTION 9.04. Waiver of Set-off. Each Lender waives any right of
setoff, counterclaim, deduction, diminution or abatement based upon any claim it
may have against the Borrower under this Agreement.
SECTION 9.05. Binding Effect. This Agreement shall become effective
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it
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and thereafter shall be binding upon and inure to the benefit of the Borrower,
the Agent and each Lender and their respective successors and assigns, except
that the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
SECTION 9.06. Assignments and Participations. (a) Each Lender may at
any time assign to one or more Persons all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Revolving Credit Commitment, its Unissued Letter of Credit
Commitment, the Revolving Credit Advances owing to it, its participations in
Letters of Credit and the Revolving Credit Note or Notes held by it); provided,
however, that (i) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or a participant or
sub-participant or owner of a beneficial interest thereof (and further
assignments by such Persons or subsequent assignees) or an assignment of all of
a Lender's rights and obligations under this Agreement, the amount of the
Revolving Credit Commitment of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall in no event be less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof unless the Borrower and the
Agent otherwise agree, (ii) each such assignment shall be to an Eligible
Assignee, (iii) the parties to each such assignment shall execute and deliver to
the Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Revolving Credit Note subject to such assignment
and a processing and recordation fee of an amount specified by the Agent, such
amount not to exceed $3,500; provided, however, that the Agent may accept an
Assignment and Acceptance executed by only the assignor where the assignee is an
owner of a beneficial interest described in clause (iii) of the definition of
Eligible Assignee, (iv) any Lender may, without the approval of the Borrower and
the Agent, assign all or a portion of its rights to any of its Affiliates and
(v) an Issuing Bank may assign all or a portion of its obligations only to (x)
an Affiliate with a long-term credit rating no lower than that of the assignor
from each of ▇▇▇▇▇'▇ and S&P and with market acceptance by beneficiaries of
letters of credit similar to that of the assignor in the reasonable judgment of
the assignor and the Borrower, (y) an assignee or successor pursuant to
operation of law or (z) an assignee or successor pursuant to a merger,
consolidation or amalgamation with or into, or transfer of all or substantially
all of the assignor's assets to, another entity. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights (other than its rights
under Sections 2.10 and 9.03 to the extent any claim thereunder relates to an
event arising prior such assignment) and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto). If a Lender assigns
all of its rights and obligations under all or a portion of this Agreement to
one or more Persons to whom such Lender has previously sold a participation
pursuant to Section 9.06(e) (so long as the Borrower has consented to the
identity of the participant and the terms of such participation at the time of
such sale, such consent not to be unreasonably withheld or delayed, and such
participation has not been amended, modified or supplemented without the consent
of Borrower, such consent not to be unreasonably withheld or delayed), on the
date of such assignment the Agent shall declare the obligation of each Lender to
make Advances (other than Revolving Credit Advances by an Issuing Bank or a
Lender pursuant to Section 2.03(c)) and of the Issuing Banks to issue Letters of
Credit to be terminated with respect to the assigned portion.
(b) By executing and delivering an Assignment and Acceptance or
accepting an assignment, the Lender assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and
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Acceptance, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or any other
instrument or document furnished pursuant hereto or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, this Agreement or any other instrument
or document furnished pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under this Agreement or any other instrument
or document furnished pursuant hereto; (iii) such assignee confirms that it has
received or has had the opportunity to request a copy of such documents and
information as it has deemed appropriate to make its decision to enter into such
Assignment and Acceptance or accept such assignment; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own decisions in taking or not
taking action under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms hereof, together
with such powers and discretion as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed
by it as a Lender or as an Issuing Bank, as the case may be.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and, if applicable, an assignee representing that it is an
Eligible Assignee, together with any Revolving Credit Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(d) The Agent shall maintain at its address referred to in Section
9.01 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Advances owing to, each Lender
from time to time in addition to the items set forth in Section 2.14(b) (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or
other Persons (other than the Borrower or any of its Affiliates) in or to all or
a portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Revolving Credit Commitment, its Unissued
Letter of Credit Commitment, the Revolving Credit Advances owing to it, its
participations in Letters of Credit and any Revolving Credit Note or Notes held
by it); provided, however, that except as otherwise agreed by the parties
hereto, (i) such Lender's obligations under this Agreement (including, without
limitation, its Revolving Credit Commitment to the Borrower hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the 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 and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by the
Borrower therefrom,
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except, if the Borrower has consented to the granting of such right to such
participant, such consent not to be unreasonably withheld or delayed, to the
extent that such amendment, waiver or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or postpone any date fixed for
any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation. If a Lender shall notify the Borrower of the existence of such a
participant or sub-participant, the Borrower shall provide such participant and
sub-participant, as applicable, with the same reports, notices, certificates,
opinions and other information in sufficient numbers as requested by the
recipient as the Borrower is required to provide to the Agent or such Lender
under this Agreement (other than pursuant to Article II).
(f) Any Lender, participant or sub-participant may, in connection
with any assignment or participation or proposed assignment or participation
pursuant to this Section 9.06, disclose to the assignee or participant or
proposed assignee or participant (or holders of beneficial interest therein),
any information relating to the Borrower furnished to such Lender, participant
or sub-participant by or on behalf of the Borrower; provided that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
(or holders of beneficial interest therein) shall agree to preserve the
confidentiality of any Confidential Information relating to the Borrower
received by it from such Lender, participant or sub-participant.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign or create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and any Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 9.07. Confidentiality. Each of the Lenders and the Agent
agrees that it will use reasonable efforts (e.g., procedures substantially
comparable to those applied by such Lender or Agent in respect of non-public
information as to the business of such Lender or Agent) to not disclose
Confidential Information to any other Person without the consent of the
Borrower, other than (a) by the Agent to any Lender, (b) by any Lender to any
other Lender or the Agent, (c) to the Agent's or such Lender's Affiliates and
their officers, directors, employees, agents and advisors and, as contemplated
by Section 9.06(f), to actual or prospective assignees and participants (or
holders of beneficial interest therein), and then only on a confidential basis,
(d) as required by any law, rule or regulation or judicial process, (e) as
requested or required by any state, federal or foreign authority, examiner or
auditor regulating banks or banking, (f) to counsel for any Lender or the Agent
and their respective independent public accountants, (g) to the extent such
information relates to an Event of Default, (h) in connection with any
litigation to which the Agent or any Lender is a party and (i) 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; provided that
a determination by a Lender or Agent as to the application of the circumstances
described in the foregoing clauses (a)-(i) is conclusive if made in good faith;
and each of the Lenders and the Agent agrees that it will follow procedures
which are intended to put any transferee of such Confidential Information on
notice that such information is confidential.
SECTION 9.08. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the law of the State of New York.
SECTION 9.09. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
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same agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.10. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, 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 any such New York State court or, to the extent permitted by law,
in such federal court. The Borrower hereby agrees that service of process in any
such action or proceeding brought in any such New York State court or in such
federal court may be made upon CT Corporation System at its offices at ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Process Agent") and the Borrower hereby
irrevocably appoints the Process Agent its authorized agent to accept such
service of process, and agrees that the failure of the Process Agent to give any
notice of any such service shall not impair or affect the validity of such
service or of any judgment rendered in any action or proceeding based thereon.
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 any party may otherwise have to serve
legal process in any other manner permitted by law or to bring any action or
proceeding relating to this Agreement or the Notes in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that 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 or the Notes
in any New York State or federal court. 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.
SECTION 9.11. Final Agreement. This Agreement and each Letter of
Credit Agreement constitute the entire agreement between the parties with
respect to the matters addressed herein and supersede all prior or simultaneous
agreements, written or oral, with respect thereto.
SECTION 9.12. Judgment. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder or under
the Notes in any currency (the "Original Currency") into another currency (the
"Other Currency"), the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase the Original
Currency with the Other Currency at 9:00 A.M. (New York City time) on the first
Business Day preceding that on which final judgment is given.
(b) The obligation of the Borrower in respect of any sum due in the
Original Currency from it to any Lender or the Agent hereunder or under the
Revolving Credit Note or Revolving Credit Notes held by such Lender shall,
notwithstanding any judgment in any Other Currency, be discharged only to the
extent that on the Business Day following receipt by such Lender or Agent (as
the case may be) of any sum adjudged to be so due in such Other Currency, such
Lender or Agent (as the case may be) may in accordance with normal banking
procedures purchase Dollars with such Other Currency; if the amount of Dollars
so purchased is less than the sum originally due to such Lender or Agent (as the
case may be) in the Original Currency, the Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender or
Agent (as the case may be) against such loss, and if the amount of Dollars so
purchased exceeds the sum originally due to any Lender or the Agent (as the case
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may be) in the Original Currency, such Lender or Agent (as the case may be)
agrees to remit to the Borrower such excess.
SECTION 9.13. No Liability of the Issuing Banks. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. None of
the Agents, the Lenders nor any Issuing Bank, nor any of their respective
Affiliates, nor the respective directors, officers, employees, agents and
advisors of such Person or such Affiliate shall be liable or responsible for:
(a) the use that may be made of any Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by such Issuing Bank against presentation of
documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the Borrower shall have
a claim against such Issuing Bank, and such Issuing Bank shall be liable to the
Borrower, to the extent of any direct, but not consequential, damages suffered
by the Borrower that the Borrower proves were caused by (i) such Issuing Bank's
willful misconduct or gross negligence as determined in a final, non-appealable
judgment by a court of competent jurisdiction in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) such Issuing Bank's willful failure to make lawful payment under
a Letter of Credit after the presentation to it of a draft and certificates
strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to such Issuing Bank
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 9.14. Waiver of Jury Trial. Each of the Borrower, the Agent
and the Lenders hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
SECTION 9.15. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. (a) Each certificate or opinion provided for
in this Agreement and delivered to the Agent with respect to compliance with a
condition or covenant provided for in this Agreement shall include (i) a
statement that the person making such certificate or opinion has read such
covenant or condition, (ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based, which examination or investigation may be
carried out by his or her designee, (iii) a statement that, in the opinion of
such person, he or she has made such examination or investigation as is
necessary to enable him or her to express an opinion as to whether or not such
covenant or condition has been complied with and (iv) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
(b) Any certificate, statement or opinion of an officer of the
Borrower may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of counsel may be
based, insofar as it relates to factual matters or information with respect to
which is in the possession of the Borrower, upon the certificate, statement or
opinion of or representations by an officer
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or officers of the Borrower, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
his or her certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
(c) Any certificate, statement or opinion of an officer of the
Borrower or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant or
firm of accountants in the employ (or former employ) of the Borrower or any of
its Restricted Subsidiaries, unless such officer or counsel, as the case may be,
knows that the certificate or opinion or representations with respect to the
accounting matters upon which his or her certificate, statement or opinion may
be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
(d) Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Agent shall contain a statement that
such firm is independent.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
By /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
----------------------
Title: Treasurer
CITIBANK, N.A.,
as Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: ATTORNEY-IN-FACT
Initial Issuing Banks
Letter of Credit Commitment
$400,000,000 CITICORP USA, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Title: Vice President
$400,000,000 Total of the Letter of Credit Commitments
Initial Lenders
Revolving Credit Commitment
$400,000,000 CITICORP USA, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Title: Vice President
$400,000,000 Total of the Revolving Credit Commitments
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