EXHIBIT 10
FIVE-YEAR CREDIT AGREEMENT
dated as of
August 12, 2004
among
UNION OIL COMPANY OF CALIFORNIA
and
CERTAIN BORROWING SUBSIDIARIES,
as Borrowers
UNOCAL CORPORATION,
as Guarantor
The Lenders Party Hereto
JPMORGAN CHASE BANK,
as Administrative Agent and
an Issuing Bank
and
CITICORP USA, INC.,
as Syndication Agent
---------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
and
CITIGROUP GLOBAL MARKETS, INC.
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
SECTION 1.01. Defined Terms....................................................1
SECTION 1.02. Classification of Loans and Borrowings..........................17
SECTION 1.03. Terms Generally.................................................17
SECTION 1.04. Accounting Terms; GAAP..........................................18
ARTICLE II
The Credits
SECTION 2.01. Commitments.....................................................18
SECTION 2.02. Loans and Borrowings............................................18
SECTION 2.03. Requests for Revolving Borrowings...............................19
SECTION 2.04. Competitive Bid Procedure.......................................20
SECTION 2.05. Letters of Credit...............................................22
SECTION 2.06. Funding of Borrowings...........................................27
SECTION 2.07. Interest Elections..............................................27
SECTION 2.08. Termination and Reduction of Commitments........................29
SECTION 2.09. Repayment of Loans; Evidence of Debt............................30
SECTION 2.10. Prepayment of Loans.............................................30
SECTION 2.11. Fees............................................................31
SECTION 2.12. Interest........................................................32
SECTION 2.13. Alternate Rate of Interest......................................33
SECTION 2.14. Increased Costs.................................................34
SECTION 2.15. Break Funding Payments..........................................35
SECTION 2.16. Taxes...........................................................36
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.....37
SECTION 2.18. Mitigation Obligations; Replacement of Lenders..................39
SECTION 2.19. Borrowing Subsidiaries..........................................40
ARTICLE III
Representations and Warranties
SECTION 3.01. Financial Statements............................................40
SECTION 3.02. No Change.......................................................41
SECTION 3.03. Corporate Existence; Compliance with Law........................41
2
SECTION 3.04. Corporate Power; Authorization; Enforceable Obligations.........41
SECTION 3.05. No Legal Bar....................................................42
SECTION 3.06. No Material Litigation..........................................42
SECTION 3.07. No Default......................................................42
SECTION 3.08. Ownership of Property; Liens....................................42
SECTION 3.09. Taxes...........................................................43
SECTION 3.10. Federal Regulations.............................................43
SECTION 3.11. ERISA...........................................................43
SECTION 3.12. Investment Company Act; Other Regulations.......................44
SECTION 3.13. Purpose of Loans................................................44
SECTION 3.14. Environmental Matters...........................................44
ARTICLE IV
Conditions
SECTION 4.01. Conditions to Effectiveness.....................................45
SECTION 4.02. Conditions to Initial Extension of Credit to Any
Borrowing Subsidiary............................................47
SECTION 4.03. Conditions to Each Extension of Credit..........................49
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements............................................50
SECTION 5.02. Certificates; Other Information.................................50
SECTION 5.03. Payment of Obligations..........................................51
SECTION 5.04. Conduct of Business and Maintenance of Existence................51
SECTION 5.05. Maintenance of Property; Insurance..............................51
SECTION 5.06. Inspection of Property; Books and Records; Discussions..........52
SECTION 5.07. Notices.........................................................52
SECTION 5.08. Environmental Laws..............................................52
SECTION 5.09. Ownership of the Company and Borrowing Subsidiaries.............53
SECTION 5.10. USA Patriot Act.................................................53
ARTICLE VI
Negative Covenants
SECTION 6.01. Leverage Ratio..................................................54
SECTION 6.02. Limitation on Liens.............................................54
SECTION 6.03. Limitations on Fundamental Changes..............................54
3
ARTICLE VII
Events of Default
ARTICLE VIII
The Agents
ARTICLE IX
Guarantees
SECTION 9.01. Guarantees......................................................59
SECTION 9.02. Subrogation, Contribution; Reimbursement or Indemnity...........60
SECTION 9.03. Modification of Obligations.....................................61
SECTION 9.04. Waiver..........................................................62
SECTION 9.05. Reinstatement...................................................63
SECTION 9.06. Payment of Obligations..........................................63
ARTICLE X
Miscellaneous
SECTION 10.01. Notices........................................................63
SECTION 10.02. Waivers; Amendments............................................64
SECTION 10.03. Expenses; Indemnity; Damage Waiver.............................65
SECTION 10.04. Successors and Assigns.........................................66
SECTION 10.05. Survival.......................................................69
SECTION 10.06. Counterparts; Integration; Effectiveness.......................69
SECTION 10.07. Severability...................................................70
SECTION 10.08. Right of Setoff................................................70
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process.....70
SECTION 10.10. WAIVER OF JURY TRIAL...........................................71
SECTION 10.11. Headings.......................................................71
SECTION 10.12. Confidentiality................................................71
SECTION 10.13. Interest Rate Limitation.......................................72
SECTION 10.14. Power of Attorney..............................................72
SECTION 10.15. Conversion of Currencies.......................................73
SECTION 10.16. USA Patriot Act................................................73
4
SCHEDULES:
----------
Schedule 1.01 -- Existing Projects
Schedule 2.01 -- Commitments
Schedule 6.02 -- Existing Liens
EXHIBITS:
---------
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of In-House Counsel of the Company
Exhibit B-2 -- Form of Opinions Relating to the Borrowing Subsidiaries
Exhibit B-3 -- Form of Opinions Relating to the Guarantor and the Company
Exhibit C -- Form of Joinder Agreement
FIVE-YEAR CREDIT AGREEMENT dated as of August 12, 2004
(this "Agreement"), among UNION OIL COMPANY OF CALIFORNIA,
the BORROWING SUBSIDIARIES from time to time party hereto,
UNOCAL CORPORATION, the LENDERS from time to time party
hereto, JPMORGAN CHASE BANK, as Administrative Agent and
CITICORP USA, INC., as Syndication Agent.
The Company (such term, and each other capitalized term used and not
otherwise defined in these recitals having the meaning assigned to it in Article
I) has requested the Lenders to extend credit to enable the Borrowers to borrow
on a revolving credit basis on and after the date hereof and at any time and
from time to time prior to the Maturity Date a principal amount not in excess of
$1,000,000,000 at any time outstanding. The Company has also requested the
Lenders to (i) make up to $500,000,000 of such credit facility available in the
form of letters of credit and (ii) establish procedures pursuant to which the
Borrowers may invite the Lenders to bid on an uncommitted basis on short-term
borrowings by the Borrowers maturing on or prior to the Maturity Date. The
proceeds of borrowings hereunder are to be used to repay amounts outstanding, if
any, under the Existing Credit Agreements and for working capital and general
corporate purposes, including, without limitation, to backstop commercial paper.
The Lenders and the Issuing Banks are willing to extend such credit to the
Borrowers on the terms and subject to the conditions herein set forth.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Administrative Agent" means JPMorgan Chase Bank, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, as to any Person, (a) any other Person (except a
Subsidiary of such Person) which, directly or indirectly, is in control of, is
controlled by,
2
or is under common control with, such Person or (b) any Person who is a
director, officer, shareholder or partner (i) of such Person, (ii) of any
Subsidiary of such Person or (iii) of any Person described in the preceding
clause (a). For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (i) vote 10% or more of the securities
having ordinary voting power for the election of directors of such Person or
(ii) direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"Agents" means the Administrative Agent and the Syndication Agent.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the total Commitments represented by such Lender's Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any Eurodollar
Revolving Loan, or with respect to the facility fees payable hereunder, as the
case may be, the applicable rate per annum set forth below under the caption
"Eurodollar Spread" or "Facility Fee Rate", as the case may be, based upon the
ratings by ▇▇▇▇▇'▇ and S&P, respectively, applicable on such date to the Index
Debt:
================================================================================
Index Debt Ratings Eurodollar Spread Facility Fee Rate
S&P/▇▇▇▇▇'▇ (in bps) (in bps)
----------- -------- --------
--------------------------------------------------------------------------------
Category 1: A or higher/A2 or higher 21.5 6.0
--------------------------------------------------------------------------------
Category 2: A-/A3 29.5 8.0
--------------------------------------------------------------------------------
Category 3: BBB+/Baa1 36.5 11.0
--------------------------------------------------------------------------------
Category 4: BBB/Baa2 50.0 12.5
--------------------------------------------------------------------------------
Category 5: BBB-/Baa3 60.0 15.0
--------------------------------------------------------------------------------
Category 6: lower than BBB-/lower than Baa3 80.0 20.0
================================================================================
For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇ or S&P shall not have
in effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then such rating agency
shall be deemed to have established a rating in Category 6; (ii) if the ratings
established or deemed to have been established by ▇▇▇▇▇'▇ and S&P for the Index
Debt shall fall within different Categories, the Applicable Rate shall be based
on the higher of the two ratings unless one of the ratings is two or more
Categories lower than the other, in which case the Applicable Rate shall be
determined by reference to the Category next above that of the lower of the two
3
ratings; and (iii) if the ratings established or deemed to have been established
by ▇▇▇▇▇'▇ and S&P for the Index Debt shall be changed (other than as a result
of a change in the rating system of ▇▇▇▇▇'▇ or S&P), such change shall be
effective as of the date on which it is first announced by the applicable rating
agency. Each change in the Applicable Rate shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of ▇▇▇▇▇'▇ or S&P shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt obligations, the Company
and the Lenders shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the
Applicable Rate shall be determined by reference to the rating most recently in
effect prior to such change or cessation.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the Effective
Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means the Company or a Borrowing Subsidiary.
"Borrowing" means (a) Revolving Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect, or (b) a Competitive Loan or group of
Competitive Loans of the same Type made on the same date and as to which a
single Interest Period is in effect.
"Borrowing Request" means a request by a Borrower for a Revolving Borrowing
in accordance with Section 2.03.
"Borrowing Subsidiary" means each Subsidiary of the Company which has been
designated by the Company as a "Borrowing Subsidiary" by written notice to the
Administrative Agent.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Change in Law" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the
4
interpretation or application thereof by any Governmental Authority after the
date of this Agreement or (c) compliance by any Lender or any Issuing Bank (or,
for purposes of Section 2.14(b), by any lending office of such Lender or by such
Lender's or such Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans or
Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans hereunder, expressed as an amount representing
the maximum permitted aggregate amount of such Lender's Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04. The initial
amount of each Lender's Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable. The initial aggregate amount of the Lenders'
Commitments is $1,000,000,000.
"Commonly Controlled Entity" means an entity, whether or not incorporated,
which is under common control with the Guarantor within the meaning of Section
4001 of ERISA or is part of a group which includes the Guarantor or the Company
and which is treated as a single employer under Section 414 of the Code.
"Company" means Union Oil Company of California, a California corporation.
"Competitive Bid" means an offer by a Lender to make a Competitive Loan in
accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by a Borrower for Competitive
Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Consolidated Debt" means, at a particular date, the sum
(without duplication) of all items which would, in conformity with GAAP, be
classified on a consolidated balance sheet of the Guarantor and its Subsidiaries
as at such date as (i) long term debt (including, without limitation, the
current portion thereof), (ii) capital lease
5
obligations (including, without limitation, the current portion thereof), and
(iii) other current liabilities for debt for borrowed money (other than, to the
extent otherwise includable therein, accrued interest thereon which is not
overdue); provided, however, that any amounts shown on the consolidated balance
sheet of the Guarantor and its Subsidiaries for the Guarantor Convertible
Debentures and Trust Convertible Preferred Securities, or for any other
Guarantor-obligated mandatorily redeemable convertible preferred securities of a
subsidiary trust holding solely convertible junior subordinated debentures of
the Guarantor that are subordinate in right of payment to the principal of and
interest on the Loans, shall not be included in Consolidated Debt (it being
agreed that any senior debt obligations held by such a trust will be included in
Consolidated Debt).
"Consolidated Intangibles" means, at a particular date, all assets of the
Guarantor and its consolidated Subsidiaries, determined on a consolidated basis,
that would, in conformity with GAAP, be classified as intangible assets,
including, without limitation, unamortized debt discount and expense,
unamortized organization and reorganization expense, costs in excess of the fair
market value of acquired companies, patents, trade or service marks, franchises,
trade names, goodwill and the amount of all write-ups in the book value of
assets resulting from any revaluation thereof (other than revaluations arising
out of foreign currency valuations in conformity with GAAP).
"Consolidated Tangible Net Assets" means, at a particular date, the amount
equal to (a) the amount which would be included as assets on the consolidated
balance sheet of the Guarantor and its consolidated Subsidiaries as at such date
in accordance with GAAP minus (b) the sum of (i) Consolidated Intangibles and
(ii) the amount which would be included as current liabilities on such
consolidated balance sheet in accordance with GAAP.
"Continuing Directors" means all members of the board of directors of the
Guarantor (a) who have held office continually since the date hereof, (b) who
assumed office after the date hereof and who were appointed under the emergency
provision contained in the Guarantor's by-laws as in effect on the date hereof,
or (c) who assumed office after the date hereof and whose nomination for
election by the Guarantor's stockholders was approved by a vote of at least 75%
of the directors described in clauses (a) and (b) of this paragraph.
"Contractual Obligation" means as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would become an Event of
Default.
"dollars" or "$" refers to lawful money of the United States of America.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 10.02).
6
"Environmental Laws" means any and all foreign, Federal, state, provincial,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, permits, licenses, authorizations or requirements of any
Governmental Authority regulating, relating to or imposing liability or
standards of conduct concerning any Hazardous Materials or environmental or
health and safety protections, as now or hereafter in effect, including, without
limitation, the Clean Water Act, the Comprehensive Environmental Response,
Compensation and Liability Act, the Superfund Amendment and Reauthorization Act
of 1986, the Emergency Planning and Community Right to Know Act, the Resource
Conservation and Recovery Act, the Safe Drinking Water Act and the Toxic
Substances Control Act, together, in each case, with each amendment, supplement
or other modification thereto, and the regulations adopted and promulgated
thereunder and all substitutions therefor.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article VII.
"Excluded Taxes" means, with respect to the any Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be made by or on account
of any obligation of any Borrower or the Guarantor hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrowers
under Section 2.18(b)), any withholding tax imposed by the United States of
America that (i) is in effect and would apply to amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this Agreement (or
designates a new lending office), except to the extent that such Foreign Lender
(or its assignor, if any) was entitled, at the time of designation of a new
lending office (or assignment), to receive additional amounts from the Borrowers
or the Guarantor with respect to any withholding tax pursuant to Section
2.16(a), or (ii) is attributable to such Foreign Lender's failure to comply with
Section 2.16(e).
"Existing Credit Agreements" means (i) the Second Amended and Restated
364-Day Credit Agreement dated as of October 3, 2003, and (ii) the Five-Year
Credit Agreement dated as of October 31, 2001, each as amended to the date
hereof, among the Company, the Subsidiaries party thereto, the Guarantor and the
administrative agent, the syndication agent and the lenders party thereto.
7
"Existing Project" means any of the projects listed and described in
Schedule 1.01.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financing Lease" means any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Eurodollar Competitive Loan), the fixed rate of interest per annum specified by
the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
Rate.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than the United States of America, a State thereof or the
District of Columbia.
"GAAP" means generally accepted accounting principles in the United States
of America.
"Governmental Authority" means any nation, government, state or other
political subdivision thereof or any entity exercising executive, legislative,
judicial, regulatory or administrative functions of government.
"Guarantee Obligation" means as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
8
obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Company in good
faith. For purposes of paragraph (e) of Article VII, no agreement in connection
with any Project Indebtedness that guarantees performance of the acquisition,
improvement, installation, design, engineering, construction, development,
completion, maintenance or operation of all or any portion of, or the provision
of products or services to, the Project that is financed by such Project
Indebtedness or the performance by any Project Company of obligations to Persons
other than the provider of such Project Indebtedness, and that does not under
any circumstances, directly or indirectly, require the payment or purchase, or
any accelerated funding of the payment or purchase, of such Project
Indebtedness, shall be deemed to constitute a Guarantee Obligation.
"Guarantor" means Unocal Corporation, a Delaware corporation.
"Guarantor Convertible Debentures" means the Guarantor's 6 1/4% Convertible
Junior Subordinated Debentures issued to Unocal Capital Trust.
"Hazardous Materials" means any (i) petroleum or petroleum byproducts,
radon gas, friable asbestos, urea formaldehyde foam insulation and (ii) any
chemicals, substances, materials or wastes defined or regulated as hazardous or
toxic under any Environmental Law.
"Indebtedness" means of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices) or which is
evidenced by a note, bond, debenture or similar instrument, (b) all obligations
of such Person under Financing Leases, (c) all obligations of such Person in
respect of acceptances issued or created for the account of such Person, (d) all
liabilities secured by any Lien on any property owned by such Person even though
such Person has not assumed or otherwise become liable for the payment thereof
and (e) Guarantee Obligations and other contingent obligations of such Person in
respect of another Person's indebtedness, obligations and liabilities of the
type described in the foregoing clauses (a) through (d).
"Indemnified Taxes" means Taxes other than Excluded Taxes.
9
"Index Debt" means senior, unsecured, long-term indebtedness for borrowed
money of the Company that is not guaranteed by any other Person or subject to
any other credit enhancement.
"Insolvency" means with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent" means pertaining to a condition of Insolvency.
"Interest Election Request" means a request by a Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan, the last
day of each March, June, September and December, (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period and (c) with respect to any Fixed
Rate Loan, the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part and, in the case of a Fixed Rate Borrowing with an
Interest Period of more than 90 days' duration (unless otherwise specified in
the applicable Competitive Bid Request), each day prior to the last day of such
Interest Period that occurs at intervals of 90 days' duration after the first
day of such Interest Period, and any other dates that are specified in the
applicable Competitive Bid Request as Interest Payment Dates with respect to
such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the applicable Borrower may elect, and (b) with respect to any
Fixed Rate Borrowing, the period (which shall not be less than 7 days or more
than 360 days) commencing on the date of such Borrowing and ending on the date
specified in the applicable Competitive Bid Request; provided that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Borrowing only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurodollar Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and,
in the case of a Revolving Borrowing, thereafter shall be the effective date of
the most recent conversion or continuation of such Borrowing.
"Issuing Bank" means, as the context may require, (a) JPMorgan Chase Bank,
in its capacity as the issuer of Letters of Credit hereunder and (b) any other
Lender
10
that may become an Issuing Bank pursuant to Section 2.05(i) or (k), with respect
to Letters of Credit issued by such Lender. An Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of such Issuing Bank, in which case the term "Issuing Bank" shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.
"Issuing Bank Agreement" has the meaning assigned to such term in Section
2.05(k).
"Joinder Agreement" means a Joinder Agreement, substantially in the form of
Exhibit C hereto, duly executed and delivered by the Company, the Guarantor and
the Borrowing Subsidiary party thereto.
"LC Commitment" means, as to each Issuing Bank, the Commitment of such
Issuing Bank to issue Letters of Credit pursuant to Section 2.05.
"LC Disbursement" means a payment made by an Issuing Bank pursuant to a
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrowers at such time. The LC Exposure of any Lender at any time shall
be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that shall have ceased to be a party hereto pursuant
to an Assignment and Acceptance.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate (rounded
upwards, if necessary, to the next 1/16 of 1%) at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately
11
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means any mortgage, pledge, hypothecation, assignment by way of
security, deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any Financing Lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the Uniform Commercial Code or comparable law
of any jurisdiction in respect of any of the foregoing).
"Loan Documents" means this Agreement each promissory note delivered
pursuant to this Agreement and all Joinder Agreements, as such documents may be
amended, modified, supplemented or restated from time to time.
"Loans" means the loans made by the Lenders to the Borrowers under this
Agreement.
"Margin" means, with respect to any Competitive Loan bearing interest at a
rate based on the LIBO Rate, the marginal rate of interest, if any, to be added
to or subtracted from the LIBO Rate to determine the rate of interest applicable
to such Loan, as specified by the Lender making such Loan in its related
Competitive Bid.
"Material Adverse Effect" means a material adverse effect on (a) the
financial position of the Guarantor and its Subsidiaries taken as a whole or (b)
the ability of the Guarantor or any Borrower to pay when due the principal of or
interest on any Loan or any other amount owing to the Lenders hereunder.
"Material Enforceability Effect" means a material adverse effect on the
validity or enforceability against the Guarantor or any Borrower of any Loan
Document or the rights or remedies of any Agent and/or any of the Lenders
against the Guarantor or any Borrower under any Loan Document.
"Material Guarantee Obligation" has the meaning assigned to such term in
paragraph (e) of Article VII.
"Material Indebtedness" has the meaning assigned to such term in paragraph
(e) of Article VII.
"Maturity Date" means the fifth anniversary of the date of this Agreement.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Obligations" means all indebtedness, obligations and liabilities of the
Company to any Agent and/or any of the Lenders incurred under or arising out of
or in connection with this Agreement (including, without limitation, Article VI
hereof) or any other Loan Document, whether for principal, LC Disbursements,
interest, fees, expenses or otherwise.
12
"Other Taxes" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Participant" has the meaning assigned to such term in Section 10.04(c).
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor thereto).
"Permitted Liens" means, as applied to the Guarantor, the Company and their
respective Subsidiaries:
(a) Liens for taxes, assessments and governmental charges not delinquent or
which are being contested in good faith by appropriate proceedings, provided
that adequate reserves with respect thereto are maintained on the books of the
Guarantor or its Subsidiaries, as the case may be, in conformity with GAAP or
where the failure to pay such amounts is not reasonably likely to have a
Material Adverse Effect;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 30 days or which are being contested in good
faith by appropriate proceedings (with adequate reserves with respect thereto
being maintained on the books of the Guarantor or its Subsidiaries, as the case
may be, in conformity with GAAP);
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate, are not
substantial in amount and which do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Guarantor or such Subsidiary;
(f) Liens securing Indebtedness owing by any Subsidiary of the Guarantor to
the Guarantor or to any other Subsidiary of the Guarantor;
(g) Liens on particular property to secure all or any part of (i) the cost
of such property, (ii) the costs of exploration, drilling or development
thereof, (iii) the costs of improvements thereto (including, without limitation,
drilling or producing platforms located thereon) or repairs, alterations,
construction or developments thereof or (iv) any Indebtedness incurred for the
purpose of, or in connection with, financing all or any of such costs;
13
(h) Liens on the property or assets of a Person which becomes a Subsidiary
of the Guarantor after the date hereof securing Indebtedness which is not
prohibited by this Agreement (after giving effect to the acquisition of such
Subsidiary), provided that (i) such Liens existed at the time such Person became
a Subsidiary of the Guarantor and were not created in anticipation thereof or
were created solely for the purpose of securing Indebtedness representing, or
incurred to finance, refinance or refund, the cost of acquisition of such
Subsidiary, (ii) any such Lien is not spread to cover any additional property or
assets of such corporation after the time such corporation becomes a Subsidiary,
and (iii) no additional amount of Indebtedness shall be secured by such Liens in
reliance upon the provisions of this clause;
(i) Liens upon real and/or tangible personal property, which property was
acquired after the Effective Date (by purchase, construction or otherwise) by
the Guarantor or its Subsidiaries, each of which Liens either (i) existed on
such property before the time of its acquisition and was not created in
anticipation thereof or (ii) was created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund, the cost
(including the cost of construction) of the respective property; provided,
however, that no such Lien shall extend to or cover any property of the
Guarantor or such Subsidiary other than the respective property so acquired and
improvements thereon;
(j) Liens in favor of any Governmental Authority to secure partial,
progress, advance or other payments, or performance of any other obligations,
pursuant to any contract or statute or to secure any Indebtedness incurred for
the purpose of financing all or any part of the purchase price or the cost of
construction of the property subject to such Lien;
(k) Liens on securities or other instruments arising out of custodial,
depository, issuing agency or similar arrangements and securing only fees,
costs, expenses and similar amounts owing to the custodian, depository or
issuing agent in respect of such arrangement;
(l) Liens in favor of operators of oil and gas properties arising under
joint operating, unit or similar agreements which encumber the interest of the
Company or its Subsidiaries in such properties and secure obligations of the
Company or its Subsidiaries in respect of operating expenses and capital
expenditures relating to such properties, the payment of which obligations is
not delinquent;
(m) Liens on cash and cash equivalents securing obligations with respect to
commodity swaps, options or futures entered into through commodities trading
markets in the ordinary course of business to hedge the Guarantor and its
Subsidiaries against fluctuations in the price of natural gas, oil or
oil-related products or with respect to interest rate or currency swap, cap or
collar agreements, interest rate or currency future or option agreements or
similar agreements to hedge against fluctuations in interest rates or currency
exchange rates; provided that the aggregate amount of cash and cash equivalents
subject to such Liens may at no time exceed $250,000,000;
14
(n) Liens on any assets (including, without limitation, streams of
revenues) of, and/or any stock or other ownership interest in, any Project
Company to secure Indebtedness or other obligations of such Project Company
incurred for the purpose of financing the cost of acquisition, development
and/or operation of a Project, or refunding to the Guarantor or any of its
Subsidiaries any such cost originally financed by it;
(o) Liens existing on the date hereof and set forth in Schedule 6.02;
provided that (i) no such Lien shall apply to any other property or asset of the
Guarantor, the Company or any Subsidiary and (ii) each such Lien shall secure
only those obligations which it secures on the date hereof;
(p) Liens not otherwise permitted by this definition securing an aggregate
amount of Indebtedness at any one time outstanding of the Guarantor and its
Subsidiaries not to exceed on any date 15% of the book value (as reported on the
most recent balance sheet delivered pursuant to subsection 5.01(a)) of the
Consolidated Tangible Net Assets of the Guarantor and its consolidated
Subsidiaries;
(q) bankers liens and rights of setoff; and
(r) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien referred to in the
foregoing clauses (other than clauses (f) and (m)); provided, however, that the
principal amount of Indebtedness secured thereby shall not exceed the principal
amount of Indebtedness so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement Lien shall be
limited to all or a part of the property which secured the Lien so extended
renewed or replaced (plus improvements on such property).
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan" means, at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Guarantor, the Company or a
Commonly Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by JPMorgan Chase Bank as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective from
and including the date such change is publicly announced as being effective.
"Project" means (a) any Existing Project and (b) any power-generation, oil,
gas, geothermal and/or chemical production, pipeline, transmission and/or
processing project acquired or constructed after the Effective Date (or, in the
case of any oil, gas or geothermal production project, initially developed after
the Effective Date), and activities incidental to any such Existing Project or
other project, with respect to which project lenders have made or will make
loans primarily in reliance upon the value of and/or
15
expected cash flow from the assets and operations of such Existing Project or
other project. For the avoidance of doubt, the term "Project" may include all or
any portion of oil and gas field developments within a production sharing
contract or agreement.
"Project Company" means any entity, other than any Borrower, which is a
direct or indirect Subsidiary of the Guarantor or other entity in which the
Guarantor or any of its Subsidiaries has an equity interest, and which in each
case (a) was created for the purpose of acquiring, developing and/or operating a
Project (and other purposes that are not material in relation to such Project as
a whole) and/or financing the costs of such acquisition, development and/or
operation, or for the purpose of owning any equity interest in such Project or
another Project Company related to such Project and (b) has no material assets
other than those related to such Project (including the operation or financing
of such Project), such direct or indirect equity interests in such Project or
any such Project Company and temporary liquid investments held for money
management purposes.
"Project Indebtedness" means any Indebtedness of a Project Company incurred
to finance the related Project.
"Properties" has the meaning assigned to such term in Section 3.14.
"Publicly Disclosed" has the meaning assigned to such term in Section 3.03.
"Register" has the meaning assigned to such term in Section 10.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Reorganization" means with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than those events described in subsections 4043(c) (9), (11) and
(12) and those events as to which the thirty day notice period is waived.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing at least a majority of the sum of
the total Revolving Credit Exposures and unused Commitments at such time;
provided that, for purposes of declaring the Loans to be due and payable
pursuant to Article VII, and for all purposes after the Loans become due and
payable pursuant to Article VII or the Commitments expire or terminate, the
outstanding Competitive Loans of the Lenders shall be included in their
respective Revolving Credit Exposures in determining the Required Lenders.
16
"Requirement of Law" means as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or final adjudication or
determination, as the case may be, of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"Responsible Officer" means as to the Guarantor or the Company, the Chief
Financial Officer, Comptroller, any Assistant Comptroller, Treasurer or any
Assistant Treasurer of the Guarantor or the Company, respectively, and as to any
Borrowing Subsidiary, any Vice President, Chief Financial Officer, Comptroller,
any Assistant Comptroller, Treasurer or any Assistant Treasurer of such
Borrowing Subsidiary.
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans and
its LC Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Sections 2.01 and 2.03.
"S&P" means Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Significant Subsidiaries" means the collective reference to each
Subsidiary of the Guarantor which, on the date of determination thereof, has
total assets equal to 5% or more of the total consolidated assets of the
Guarantor and its Subsidiaries, as shown on the latest financial statements of
the Guarantor and its consolidated Subsidiaries delivered pursuant to subsection
5.01(a) (or, during the period prior to the delivery of any such financial
statements pursuant to subsection 5.01(a), pursuant to subsection 3.01(a)).
"Single Employer Plan" means any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Subsidiary" means as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Guarantor.
"Subsidiary Obligations" means all indebtedness, obligations and
liabilities of each Borrowing Subsidiary to any Agent and/or any of the Lenders
incurred under or arising out of or in connection with this Agreement or any
other Loan
17
Document, whether for principal, LC Disbursements, interest, fees, expenses or
otherwise.
"Syndication Agent" means Citicorp USA, Inc., in its capacity as
syndication agent for the Lenders hereunder.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"Total Stockholders' Equity" means, at a particular date, an amount equal
to the sum, without duplication, of (i) the total stockholders' equity of the
Guarantor and its consolidated Subsidiaries and (ii) any Guarantor-obligated
mandatorily redeemable convertible preferred securities of a subsidiary trust
holding solely convertible junior subordinated debentures of the Guarantor that
are subordinate in right of payment to the principal of and interest on the
Loans, all as shown (or to be shown) on the Guarantor's consolidated balance
sheet as at the end of such fiscal quarter delivered (or to be delivered)
pursuant to Section 5.01(a).
"Trust Convertible Preferred Securities" means the 6 1/4% Trust Convertible
Preferred Securities of Unocal Capital Trust.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the LIBO Rate, the Alternate Base Rate or, in the
case of a Competitive Loan or Borrowing, a Fixed Rate.
"Wholly Owned Subsidiary" means a Subsidiary of which securities (except
for directors' qualifying shares) or other ownership interests representing 100%
of the equity interests in such Subsidiary are, at the time any determination is
being made, owned, controlled or held, directly or indirectly, by the Company.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type (e.g., a
"Eurodollar Revolving Loan"). Borrowings also may be classified and referred to
by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurodollar
Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b)
18
any reference herein to any Person shall be construed to include such Person's
successors and assigns, (c) the words "herein", "hereof" and "hereunder", and
words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references herein
to Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) the
words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights and (f) all
references herein to the "date hereof" or the "date of this Agreement" shall be
construed as referring to August 12, 2004; provided that all obligations of the
Borrowers accrued under the Existing Credit Agreement and not paid shall
continue to be obligations of the Borrowers under this Agreement. References
herein to the taking of any action hereunder of an administrative nature by any
Borrower shall be deemed to include references to the Company taking such action
on such Borrower's behalf and the Agents are expressly authorized to accept any
such action taken by the Company as having the same effect as if taken by such
Borrower. Any notice given to the Company shall be deemed to have been given
simultaneously to each Borrower.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company or the
Guarantor requests an amendment to any provision hereof to eliminate the effect
of any change occurring after the date hereof in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies the Company that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans to the Borrowers from time to
time during the Availability Period in an aggregate principal amount that will
not result in (a) such Lender's Revolving Credit Exposure exceeding such
Lender's Commitment or (b) the sum of the total Revolving Credit Exposures plus
the aggregate principal amount of outstanding Competitive Loans exceeding the
total Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrowers may borrow, prepay and reborrow
Revolving Loans during the Availability Period.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made
as part of a Borrowing consisting of Revolving Loans made by the Lenders
19
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made in accordance with the procedures set forth in Section 2.04. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments and Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the applicable Borrower
may request in accordance herewith, and (ii) each Competitive Borrowing shall be
comprised entirely of Eurodollar Loans or Fixed Rate Loans as the applicable
Borrower may request in accordance herewith. Each Lender at its option may make
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option shall
not affect the obligation of any Borrower to repay such Loan in accordance with
the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $5,000,000 and not less than $20,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $5,000,000 and not less than $20,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e). Each Competitive Borrowing shall be in an aggregate amount that is an
integral multiple of $10,000,000 and not less than $10,000,000. Borrowings of
more than one Type and Class may be outstanding at the same time; provided that
there shall not at any time be more than a total of five Eurodollar Revolving
Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, no Borrower
shall be entitled to request, or to elect to convert or continue, any Revolving
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
Borrowing, the applicable Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
12:00 noon, New York City time, three Business Days before the date of the
proposed Borrowing and (b) in the case of an ABR Borrowing, not later than 12:00
noon, New York City time, on the Business Day of the proposed Borrowing;
provided that any such notice of an ABR Revolving Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05 (e) may be
given not later than 10:00 a.m., New York City time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the applicable Borrower. Each such telephonic and written
Borrowing Request shall specify the following information in compliance with
Section 2.02:
20
(i) the Borrower requesting such Borrowing;
(ii) the aggregate amount of the requested Borrowing;
(iii)the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest Period
to be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.06.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the applicable Borrower shall be deemed to have selected an Interest Period of
one month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Availability Period
any Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans at any time shall not exceed
the total Commitments. To request Competitive Bids, a Borrower shall notify the
Administrative Agent of such request by telephone, in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, four Business Days
before the date of the proposed Borrowing and, in the case of a Fixed Rate
Borrowing, not later than 10:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing; provided that the Borrowers may
submit up to (but not more than) three Competitive Bid Requests on the same day,
but a Competitive Bid Request shall not be made within five Business Days after
the date of any previous Competitive Bid Request, unless any and all such
previous Competitive Bid Requests shall have been withdrawn or all Competitive
Bids received in response thereto rejected. Each such telephonic Competitive Bid
Request shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request in a form approved by
the Administrative Agent and signed by the applicable Borrower. Each such
telephonic and written Competitive Bid Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrower requesting such Borrowing;
21
(ii) the aggregate amount of the requested Borrowing;
(iii)the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be a Eurodollar Borrowing or a Fixed
Rate Borrowing;
(v) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period" and shall end no later than the Maturity Date; and
(vi) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.06.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section 2.04, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or more
Competitive Bids to the applicable Borrower in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $10,000,000 and an integral multiple of
$10,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the applicable Borrower) of the Competitive Loan or Loans
that the Lender is willing to make, (ii) the Competitive Bid Rate or Rates at
which the Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and the last
day thereof.
(c) The Administrative Agent shall promptly notify the applicable Borrower
by telecopy of the Competitive Bid Rate and the principal amount specified in
each Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the applicable
Borrower may accept or reject any Competitive Bid. The applicable Borrower shall
notify the Administrative Agent by telephone, confirmed by telecopy in a form
approved by the Administrative Agent, whether and to what extent it has decided
to accept or reject each Competitive Bid, in the case of a Eurodollar
Competitive Borrowing, not later than
22
10:30 a.m., New York City time, three Business Days before the date of the
proposed Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not
later than 10:30 a.m., New York City time, on the proposed date of the
Competitive Borrowing; provided that (i) the failure of such Borrower to give
such notice shall be deemed to be a rejection of each Competitive Bid, (ii) such
Borrower shall not accept a Competitive Bid made at a particular Competitive Bid
Rate if such Borrower rejects a Competitive Bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids accepted by such
Borrower shall not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request, (iv) to the extent
necessary to comply with clause (iii) above, such Borrower may accept
Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in
the case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Competitive Bid, and
(v) except pursuant to clause (iv) above, no Competitive Bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of $10,000,000 and an integral multiple of $10,000,000; provided further
that if a Competitive Loan must be in an amount less than $10,000,000 because of
the provisions of clause (iv) above, such Competitive Loan may be for a minimum
of $1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
applicable Borrower. A notice given by a Borrower pursuant to this paragraph
shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender by
telecopy whether or not its Competitive Bid has been accepted (and, if so, the
amount and Competitive Bid Rate so accepted), and each successful bidder will
thereupon become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such Competitive Bid directly to the
applicable Borrower at least one quarter of an hour earlier than the time by
which the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, any Borrower may request the issuance of Letters of
Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the applicable Issuing Bank, at any time and from time
to time during the Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
applicable Borrower to, or entered into by the applicable Borrower with, the
applicable Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control.
23
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the applicable Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
the applicable Issuing Bank and the Administrative Agent (reasonably in advance
of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c)
of this Section), the amount of such Letter of Credit, the name and address of
the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by such
Issuing Bank, the applicable Borrower also shall submit a letter of credit
application on such Issuing Bank's standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that),
(x) after giving effect to such issuance, amendment, renewal or extension (i)
the applicable Issuing Bank's LC Exposure shall not exceed such Issuing Bank's
LC Commitment, (ii) the aggregate LC Exposure of all Issuing Banks shall not
exceed $500,000,000 and (iii) the sum of the total Revolving Credit Exposures
plus the aggregate principal amount of outstanding Competitive Loans shall not
exceed the total Commitments and (y) the Issuing Bank has not received, on or
prior to the date of such requested issuance, amendment, renewal or extension, a
notice from the Administrative Agent or any Lender that the conditions set forth
in Section 4.03 have not been satisfied.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the date that is
five Business Days prior to the Maturity Date.
(d) 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
Applicable Percentage of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of such Issuing Bank, such Lender's Applicable Percentage
of each LC Disbursement made by such Issuing Bank and not reimbursed by the
applicable Borrower on the date due as provided in paragraph (e) of this Section
2.05, or of any reimbursement payment required to be refunded to the applicable
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
24
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 Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any LC Disbursement in
respectof a Letter of Credit, the applicable Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the Business Day
next following the date on which the applicable Borrower shall have received
notice of such LC Disbursement prior to 2:00 p.m., New York City time, on such
date; provided that, if such LC Disbursement is not less than $20,000,000, the
applicable Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 that such payment be financed
with an ABR Revolving Borrowing in an equivalent amount and, to the extent so
financed, the applicable Borrower's obligation to make such payment shall be
discharged and replaced by the resulting ABR Revolving Borrowing. If the
applicable Borrower fails to make such payment when due, the Administrative
Agent shall notify each Lender of the applicable LC Disbursement, the payment
then due from the applicable Borrower in respect thereof and such Lender's
Applicable Percentage thereof. Promptly following receipt of such notice, each
Lender shall pay to the Administrative Agent its Applicable Percentage of the
payment then due from the applicable Borrower, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall
apply, mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to such Issuing Bank the amounts so
received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the applicable Borrower pursuant to
this paragraph, the Administrative Agent shall distribute such payment to such
Issuing Bank or, to the extent that the Lenders have made payments pursuant to
this paragraph to reimburse such Issuing Bank, then to such Lenders and such
Issuing Bank as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse such Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans as contemplated
above) shall not constitute a Loan and shall not relieve the Borrower of its
obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The applicable Borrower's obligation to reimburse
LC Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by an Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the applicable Borrower's obligations
hereunder. Neither the
25
Administrative Agent, the Lenders nor the Issuing Banks, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of an
Issuing Bank; provided that the foregoing shall not be construed to excuse an
Issuing Bank from liability to the applicable Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in respect of which
are hereby waived by the applicable Borrower to the extent permitted by
applicable law) suffered by the applicable Borrower that are caused by such
Issuing Bank's failure to exercise care when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of an Issuing Bank, the Issuing
Banks shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, an
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The applicable Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. Such Issuing Bank shall promptly
notify the Administrative Agent and the applicable Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether such Issuing Bank
has made or will make an LC Disbursement thereunder; provided that any failure
to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse such Issuing Bank and the Lenders with respect to any
such LC Disbursement.
(h) Interim Interest. If an Issuing Bank shall make any LC Disbursement,
then, unless the applicable Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the applicable Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the applicable Borrower fails to reimburse such LC
Disbursement when due pursuant to paragraph (e) of this Section, then Section
2.14(d) shall apply. Interest accrued pursuant to this paragraph shall be for
the account of such Issuing Bank, except that interest accrued on and after the
date of payment by any Lender pursuant to paragraph (e) of this Section to
reimburse such Issuing Bank shall be for the account of such Lender to the
extent of such payment.
26
(i) Replacement of Issuing Banks. An Issuing Bank may be replaced at any
time by written agreement among the applicable Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of an
Issuing Bank. At the time any such replacement shall become effective, the
applicable Borrower shall pay all unpaid fees accrued for the account of the
replaced Issuing Bank pursuant to Section 2.13(b). From and after the effective
date of any such replacement, (i) the successor Issuing Bank shall have all the
rights and obligations of the replaced Issuing Bank under this Agreement with
respect to Letters of Credit to be issued thereafter and (ii) references herein
to the term "Issuing Bank" shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing Banks, as
the context shall require. After the replacement of an Issuing Bank hereunder,
the replaced Issuing Bank shall remain a party hereto and shall continue to have
all the rights and obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall
not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the applicable Borrower receives notice
from the Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the applicable Borrower shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Lenders, an amount in cash equal to the LC Exposure as of
such date plus any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to any Borrower described in clause (f) of Article VII. Such deposit
shall be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the applicable Borrower under this Agreement.
The Administrative Agent shall have exclusive dominion and control, including
the exclusive right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits, which investments shall be made at
the option of the Administrative Agent and at the applicable Borrower's risk and
expense, such deposits shall not bear interest. Interest or profits, if any, on
such investments shall accumulate in such account. Moneys in such account shall
be applied by the Administrative Agent to reimburse the Issuing Banks for LC
Disbursements for which they have not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the applicable Borrower for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of Lenders with LC
Exposure representing greater than 50% of the total LC Exposure), be applied to
satisfy other obligations of the applicable Borrower under this Agreement. If
the applicable Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the applicable
Borrower within three Business Days after all Events of Default have been cured
or waived.
27
(k) Designation of Additional Issuing Banks. From time to time, the
Borrowers may by notice to the Administrative Agent and the Lenders designate
one or more Lenders as additional Issuing Banks. The acceptance by a Lender of
any appointment as an Issuing Bank hereunder shall be evidenced by an agreement
(an "Issuing Bank Agreement"), which shall be in a form satisfactory to the
Borrowers and the Administrative Agent, shall set forth the LC Commitment of
such Lender and shall be executed by such Lender, the Borrowers and the
Administrative Agent and, from and after the effective date of such agreement,
(i) such Lender shall have all the rights and obligations of an Issuing Bank
under this Agreement and the other Loan Documents and (ii) references herein and
in the other Loan Documents to the term "Issuing Bank" shall be deemed to
include such Lender in its capacity as an Issuing Bank.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 2:00 p.m., New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the applicable Borrower by promptly crediting the amounts so received, in
like funds, to accounts of such Borrower maintained with the Administrative
Agent in New York City and designated by such Borrower in the applicable
Borrowing Request or Competitive Bid Request; provided that ABR Revolving Loans
made to finance the reimbursement of an LC Disbursement as provided in Section
2.05(e) shall be remitted by the Administrative Agent to the applicable Issuing
Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date (in the case of a Eurodollar Loan) or time (in
the case of an ABR Loan) of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the applicable Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrowers agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the applicable
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the applicable
Borrower, the interest rate applicable to ABR Loans. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurodollar Revolving Borrowing, shall have an initial Interest Period
as specified in such Borrowing Request. Thereafter, the applicable Borrower may
elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the
28
case of a Eurodollar Revolving Borrowing, may elect Interest Periods therefor,
all as provided in this Section. A Borrower may elect different options with
respect to different portions of an affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section shall not apply to Competitive
Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, a Borrower shall notify
the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if such Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
applicable Borrower.
(c) Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the applicable Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If a Borrower shall fail to deliver a timely Interest Election Request
with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing.
29
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Company, then, so long as an Event of Default
is continuing (i) no outstanding Revolving Borrowing may be converted to or
continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Revolving Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments and the LC Commitments shall terminate on
the Maturity Date.
(b) On the date 30 days after (i) any "person" or "group" within the
meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), becomes the "beneficial owner" (as defined in Rule
13d-3 under the ▇▇▇▇ ▇▇▇) of more than 30% of the then outstanding voting stock
of the Guarantor (including voting stock issuable upon conversion of other
securities of the Guarantor) otherwise than in a transaction having the approval
of the board of directors of the Guarantor at least a majority of which members
are Continuing Directors or (ii) Continuing Directors shall cease to constitute
at least a majority of the directors constituting the board of directors of the
Guarantor, the Commitments and the LC Commitments automatically shall terminate.
Upon any termination of the Commitments and the LC Commitments pursuant to this
Section, the Company shall immediately prepay, or cause to be prepaid, all
Revolving Loans, deposit with the Administrative Agent cash collateral in an
amount at least equal to the aggregate principal of and interest accrued or to
accrue through maturity on all outstanding Competitive Loans and LC Exposures
and pay all other amounts due to the Agents, the Issuing Banks or the Lenders
hereunder.
(c) The Company may at any time terminate, or from time to time reduce, the
Commitments; provided that (i) each reduction of the Commitments shall be in an
amount that is an integral multiple of $1,000,000 and not less than $5,000,000
and (ii) the Company shall not terminate or reduce the Commitments if, after
giving effect to any concurrent prepayment of the Loans in accordance with
Section 2.10, the sum of the Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans would exceed the total
Commitments.
(d) The Company shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (c) of this Section at least
three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Company pursuant
to this Section shall be irrevocable; provided that a notice of termination of
the Commitments delivered by the Company may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Company (by notice to the Administrative Agent
on or prior to the specified effective date) if such condition is not satisfied.
Any termination or reduction of the Commitments
30
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) Each Borrower
hereby unconditionally agrees to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
on the Maturity Date and (ii) to the Administrative Agent for the account of
each Lender having a Competitive Loan the then unpaid principal amount of each
Competitive Loan on the last day of the Interest Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrowers to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrowers to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrowers to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrowers shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 10.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.10. Prepayment of Loans. (a) Each Borrower shall have the right
at any time and from time to time to prepay any Borrowing in whole or in part,
in minimum amounts of $5,000,000 and integral multiples of $1,000,000 subject to
prior notice in accordance with paragraph (b) of this Section; provided that a
Borrower shall not have the right to prepay any Competitive Loan without the
prior consent of the Lender thereof.
31
(b) The applicable Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment or (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.08, then such notice
of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.08. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each prepayment of a Revolving Borrowing shall
be applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.12.
SECTION 2.11. Fees. (a) The Borrowers agree, jointly and severally, to pay
to the Administrative Agent for the account of each Lender a facility fee, which
shall accrue at the Applicable Rate on the daily amount of the Commitment of
such Lender (whether used or unused) during the period from and including the
date of this Agreement to but excluding the Maturity Date; provided that, if
such Lender continues to have any Revolving Credit Exposure after the Maturity
Date, then such facility fee shall continue to accrue on the daily amount of
such Lender's Revolving Credit Exposure from and including the Maturity Date to
but excluding the date on which such Lender ceases to have any Revolving Credit
Exposure. Accrued facility fees shall be payable in arrears on the last day of
March, June, September and December of each year, on any date prior to the
Maturity Date on which the Commitments terminate and on the Maturity Date,
commencing on the first such date to occur after the date hereof and any such
fee accruing after the Maturity Date shall be payable on demand. All facility
fees shall be computed on the basis of a year of 365 days (or 366 days in a leap
year) and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
(b) The Borrowers agree, jointly and severally, to pay to the
Administrative Agent for the account of each Lender, for each day on which the
aggregate amount of all Loans and LC Exposure outstanding shall exceed 50% of
the aggregate amount of the Lenders' Commitments (including each day after the
termination of the Commitments on which Loans shall be outstanding), a
utilization fee of 0.125% per annum on the aggregate amount of Loans of such
Lender outstanding on such day. Accrued utilization fees shall be payable in
arrears on the last day of March, June, September and December of each year, on
any date prior to the Maturity Date on which the Commitments terminate and on
the Maturity Date, commencing on the first such date to occur after the date
hereof; provided that any utilization fees accruing after the Maturity Date
shall be payable on demand. All utilization fees shall be computed on the basis
of the actual number of days elapsed in a year of 365 days (or 366 days in a
leap year).
32
(c) The Borrowers agree, jointly and severally, to pay (i) to the
Administrative Agent for the account of each Lender a participation fee with
respect to its participations in Letters of Credit, which shall accrue at the
same Applicable Rate used to determine the interest rate applicable to
Eurodollar Revolving Loans on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date on which such Lender's Commitment terminates and
the date on which such Lender ceases to have any LC Exposure, and (ii) to each
Issuing Bank (A) a fronting fee, which shall accrue at the rate or rates per
annum set forth in the Issuing Bank Agreement of such Issuing Bank or as the
Borrowers and such Issuing Bank may otherwise agree on the average daily amount
of the LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) of such Issuing Bank during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Commitments and the date on which there ceases to be any LC Exposure, and (B)
such Issuing Bank's standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees accrued through and including
the last day of March, June, September and December of each year shall be
payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Commitments terminate and any such
fees accruing after the date on which the Commitments terminate shall be payable
on demand. Any other fees payable to the Issuing Banks pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 365 days (or 366
days in a leap year), and in each case shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(d) The Borrowers agree, jointly and severally, to pay to each Agent, for
its own account, fees in the amounts and at the times separately agreed upon
between the Borrowers and such Agent.
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (other than the fees
referred to in paragraph (c)(ii) and (d) of this Section, which shall be paid to
the Issuing Banks and the applicable Agent, respectively) for distribution, in
the case of facility fees, participation fees and utilization fees, to the
Lenders. Fees paid shall not be refundable.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing shall
bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest (i)
in the case of a Eurodollar Revolving Loan, at the LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Rate, or (ii) in the
case of a Eurodollar Competitive Loan, at the LIBO Rate for the Interest Period
in effect for such Borrowing plus (or minus, as applicable) the Margin
applicable to such Loan.
33
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate applicable
to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by a Borrower hereunder is not paid when
due, whether at stated maturity, upon acceleration or otherwise, such overdue
amount shall bear interest, after as well as before judgment, at a rate per
annum equal to (i) in the case of overdue principal of any Loan, 2% per annum
plus the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount, 2% per annum
plus the rate applicable to ABR Loans as provided in paragraph (a) of this
Section.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to
paragraph (d) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(f) All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate or LIBO Rate
shall be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or,
in the case of a Eurodollar Competitive Loan, the Lender that is required
to make such Loan) that the LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included in such Borrowing
for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances
34
giving rise to such notice no longer exist, (i) any Interest Election Request
that requests the conversion of any Revolving Borrowing to, or continuation of
any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective, (ii) if
any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing
shall be made as an ABR Borrowing and (iii) any request by the Borrowers for a
Eurodollar Competitive Borrowing shall be ineffective; provided that (A) if the
circumstances giving rise to such notice do not affect all the Lenders, then
requests by the Borrowers for Eurodollar Competitive Borrowings may be made to
Lenders that are not affected thereby and (B) if the circumstances giving rise
to such notice affect only one Type of Borrowings, then the other Type of
Borrowings shall be permitted.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender or any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans or
Fixed Rate Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or such Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender or such Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Borrowers will pay to such Lender or such Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such
Lender or such Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or any Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or such Issuing Bank's capital or on the capital of
such Lender's or such Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a
level below that which such Lender or such Issuing Bank or such Lender's or such
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or such Issuing Bank's policies and the
policies of such Lender's or such Issuing Bank's holding company with respect to
capital adequacy), then from time to time the Borrowers will pay to such Lender
or such Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or such Issuing Bank or such Lender's or such
Issuing Bank's holding company for any such reduction suffered. It is
acknowledged that this Agreement is being entered into by the Lenders on the
understanding that the Lenders will not be required to maintain capital against
their Commitments under
35
currently applicable laws, regulations and regulatory guidelines. In the event
the Lenders' understanding is or shall become incorrect, it is agreed that the
Lenders will be entitled to make claims under this paragraph (b) based upon
market requirements prevailing on the date hereof for commitments under
comparable credit facilities against which capital is required to be maintained.
(c) A certificate of a Lender or an Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or such Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Company and shall be conclusive absent
manifest error. The Borrowers shall pay such Lender or such Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or any Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or such Issuing Bank's right to demand such compensation; provided
that the Borrowers shall not be required to compensate a Lender or an Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 120 days prior to the date that such Lender or such Issuing Bank, as
the case may be, notifies the Company of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or such Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 120-day period referred to above shall be extended to include the period of
retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a Lender
shall not be entitled to compensation pursuant to this Section in respect of any
Competitive Loan if the Change in Law that would otherwise entitle it to such
compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.15. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurodollar Loan or Fixed Rate Loan other than on the last
day of an Interest Period applicable thereto (including as a result of an Event
of Default), (b) the conversion of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.10(b) and is revoked in accordance therewith), (d) the failure
to borrow any Competitive Loan after accepting the Competitive Bid to make such
Loan, or (e) the assignment of any Eurodollar Loan or Fixed Rate Loan other than
on the last day of the Interest Period applicable thereto as a result of a
request by the Company pursuant to Section 2.18, then, in any such event, the
Borrowers shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
LIBO Rate that would have been applicable to
36
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrowers and shall be conclusive absent manifest error. The Borrowers shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrowers or the Guarantor hereunder shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if any Borrower or the Guarantor shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, any Lender or any Issuing Bank (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower or the Guarantor shall make such
deductions and (iii) such Borrower or the Guarantor shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Borrowers and the Guarantor shall pay any Other Taxes
to the relevant Governmental Authority in accordance with applicable law.
(c) The Borrowers and the Guarantor shall indemnify the Administrative
Agent, each Lender and each Issuing Bank, within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or such Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrowers and/or the Guarantor hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to the Company by a Lender or an Issuing Bank, or by the Administrative Agent on
its own behalf or on behalf of a Lender or an Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by a Borrower or the Guarantor to a Governmental Authority, the Company
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
37
(e) Any Foreign Lender that is (i) lending to or receiving payments under
this Agreement from the Company or a Borrower that is a United States person (as
defined in Section 7701(a)(30) of the Code) and (ii) entitled to an exemption
from or reduction of withholding shall deliver to the Company two copies of
United States Internal Revenue Service Form (i) W-8ECI, (ii) W-8BEN describing
eligibility for exemption from US Federal withholding tax under an applicable
tax treaty or (iii) W-8BEN and a non-bank certificate, or any successor forms to
the foregoing. Each Foreign Lender shall redeliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Foreign
Lender, except to the extent that such Foreign Lender is legally unable to
redeliver such forms.
(f) Any Lender that is entitled to an exemption from or reduction in the
rate of withholding tax that is otherwise required to be withheld by a Borrower
that is not a United States Person (as defined in Section 7701(a)(30) of the
Code) with respect to payments under this Agreement shall deliver to the Company
(with a copy to the Administrative Agent), such properly completed and executed
documentation reasonably requested by the Company as will permit such payments
to be made without withholding or at a reduced rate; provided that such Lender
has received written notice from the Company advising it of the availability of
such exemption or reduction and containing all applicable documentation.
(g) If the Administrative Agent or a Lender determines, in good faith, that
it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrowers and the Guarantor or with respect to which any
Borrower and/or the Guarantor has paid additional amounts pursuant to this
Section 2.16, it shall pay over such refund to the Borrowers and/or the
Guarantor (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrowers and/or the Guarantor under this Section 2.16 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided that the Borrowers and/or the Guarantor,
upon the request of the Administrative Agent or such Lender, agree to repay the
amount paid over to the Borrowers and/or the Guarantor (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or
such Lender is required to repay such refund to such Governmental Authority.
This Section shall not be construed to require the Administrative Agent or any
Lender to make available its tax returns (or any other information relating to
its taxes which it deems confidential) to the Borrowers or the Guarantor or any
other Person.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Each Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest, fees or reimbursement of LC Disbursements, or
of amounts payable under Section 2.14, 2.15 or 2.16, or otherwise) prior to 2:00
p.m., New York City time, on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding
38
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to an Issuing Bank as
expressly provided herein and except that payments pursuant to Sections 2.14,
2.15, 2.16 and 10.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim
or otherwise, obtain payment in respect of any principal of or interest on any
of its Revolving Loans or participations in LC Disbursements resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans and participations in LC Disbursements and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans and participations in LC Disbursements of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by any Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to a Borrower or
any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). Each of the Guarantor and each Borrower consents to the
foregoing and agrees, to the extent they may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Guarantor or such Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Guarantor or such Borrower in the amount of
such participation.
39
(d) Unless the Administrative Agent shall have received notice from the
Company prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Banks hereunder that the
applicable Borrower will not make such payment, the Administrative Agent may
assume that such Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or
the Issuing Banks, as the case may be, the amount due. In such event, if the
applicable Borrower has not in fact made such payment, then each of the Lenders
and the Issuing Banks, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or such Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.06(b) or 2.17(d), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.14, or if any Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.16, then such Lender shall, in
consultation with the Company, use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 2.14 or 2.16,
as the case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. Each Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if any
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Company may, without limitation, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 8.04), all its interests, rights and obligations under this
Agreement (other than any outstanding Competitive Loans held by it) to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Company
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an
40
amount equal to the outstanding principal of its Loans (other than Competitive
Loans) and participations in LC Disbursements, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the
Company (in the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.14 or
payments required to be made pursuant to Section 2.16, such assignment will
result in a material reduction in such compensation or payments.
SECTION 2.19. Borrowing Subsidiaries. On or after the Effective Date, the
Company may designate any wholly owned subsidiary of the Company as a Borrowing
Subsidiary by delivery to the Administrative Agent of a Joinder Agreement
executed by such Subsidiary, the Company and the Guarantor, and upon such
delivery such Subsidiary shall for all purposes of this Agreement be a Borrowing
Subsidiary and a party to this Agreement. Promptly following receipt of any
Joinder Agreement, the Administrative Agent shall send a copy thereof to each
Lender.
ARTICLE III
Representations and Warranties
The Guarantor and the Company hereby jointly and severally represent and
warrant to the Lenders that (and each Borrowing Subsidiary party to this
Agreement hereby makes such representations and warranties to the extent they
relate to such Borrowing Subsidiary):
SECTION 3.01. Financial Statements. The consolidated balance sheet of the
Guarantor and its consolidated Subsidiaries as at December 31, 2003, and the
related consolidated statements of earnings, stockholders' equity and cash flows
for the fiscal year ended on such date, included in the Guarantor's Annual
Report on Form 10-K for the fiscal year ended on December 31, 2003, and reported
on by PricewaterhouseCoopers LLP, copies of which have heretofore been furnished
to each Lender, are complete and correct in that they present fairly the
consolidated financial position of the Guarantor and its consolidated
Subsidiaries as at such date and the consolidated results of their operations
and their consolidated cash flows for the fiscal year then ended. The unaudited
consolidated balance sheet of the Guarantor and its consolidated Subsidiaries as
at March 31, 2004, and the related unaudited consolidated statements of earnings
and of cash flows for the six-month period ended on such date included in the
Guarantor's Quarterly Report on Form 10-Q for the quarter ended on March 31,
2004, are, subject to the qualifications set forth in Note (1) thereto, complete
and correct in that they present fairly the consolidated financial position of
the Guarantor and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and their consolidated cash flows for
the six-month period then ended (subject to normal year-end audit adjustments).
All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as disclosed therein).
41
Neither the Guarantor nor any of its consolidated Subsidiaries had, at the date
of the most recent balance sheet referred to above, any known material Guarantee
Obligation, contingent liability or liability for taxes, or any known long-term
lease or unusual forward or long-term commitment, including, without limitation,
any interest rate or foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes thereto and which is
material to the Guarantor and its Subsidiaries taken as a whole. During the
period from March 31, 2004, to and including the Effective Date, there has been
no sale, transfer or other disposition by the Guarantor or any of its
consolidated Subsidiaries of any material part of its business or property and
no purchase or other acquisition of any business or property (including any
capital stock of any other Person) material in relation to the consolidated
financial position of the Guarantor and its consolidated Subsidiaries at March
31, 2004.
SECTION 3.02. No Change. Since December 31, 2003, there has been no
development or event which has had or is reasonably likely to have a Material
Adverse Effect.
SECTION 3.03. Corporate Existence; Compliance with Law. Each of the
Guarantor and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the full power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
and (d) except as publicly disclosed in the Guarantor's reports (including its
Forms 8-K, 10-Q and 10-K) filed with the Securities and Exchange Commission
prior to the date hereof ("Publicly Disclosed"), is in compliance with all
Requirements of Law except, as to each of clauses (a), (b), (c) and (d) above,
to the extent that all failures to comply therewith are not, in the aggregate,
reasonably likely to have a Material Adverse Effect.
SECTION 3.04. Corporate Power; Authorization; Enforceable Obligations. Each
of the Guarantor and each Borrower has the corporate power and authority, and
the legal right, to make, deliver and perform this Agreement and each Joinder
Agreement (as applicable) and to borrow and provide the guarantees hereunder (as
applicable) and has taken all necessary corporate action to authorize the
extensions of credit and guarantees on the terms and conditions of this
Agreement and each Joinder Agreement (as applicable) and to authorize the
execution, delivery and performance of this Agreement and each Joinder Agreement
(as applicable). No consent or authorization of, filing with or other act by or
in respect of, any Governmental Authority or any other Person is required to be
obtained or made, as the case may be, by the Guarantor or any Borrower in
connection with the extensions of credit or guarantees hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or each Joinder Agreement (as applicable) by or against the Guarantor and each
Borrower, except as has been obtained and remains in full force and effect on
the date hereof. This Agreement has been, and each Joinder Agreement (as
applicable) will be, duly executed and delivered on behalf of the Guarantor and
each Borrower party hereto or thereto. This Agreement constitutes, and each
Joinder Agreement (as applicable) when executed and
42
delivered will constitute, a legal, valid and binding obligation of the
Guarantor and each Borrower party hereto or thereto enforceable against it in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law). Each
Borrower has, or upon its execution and delivery hereof or thereof will have,
full power and authority and the legal right to make, deliver and perform any
Joinder Agreement to which it is or will be a party and to borrow hereunder (as
applicable) and has taken, or prior to the execution and delivery hereof or
thereof will have taken, all necessary action to authorize the extensions of
credit (as applicable) contemplated by this Agreement on the terms and
conditions of this Agreement, and to authorize the execution, delivery and
performance of any Joinder Agreement to which it is or will be a party. On the
date of delivery thereof, each Joinder Agreement of each Borrowing Subsidiary
party thereto will have been duly executed and delivered on behalf of each
Borrower party thereto and will constitute a legal, valid and binding obligation
of such Borrower, enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
SECTION 3.05. No Legal Bar. The execution, delivery and performance of this
Agreement or any Joinder Agreement, the borrowings and the making of the
guarantees hereunder and the use of the proceeds of the borrowings hereunder
will not violate any material Requirement of Law or material Contractual
Obligation of the Guarantor or of any of its Subsidiaries and will not result
in, or require, the creation or imposition of any Lien on any of its or their
respective properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation.
SECTION 3.06. No Material Litigation. Except as Publicly Disclosed, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the best knowledge of the Guarantor or
the Company, threatened by or against the Guarantor or any of its Subsidiaries
or against any of its or their respective properties or revenues (a) with
respect to this Agreement or any extension of credit or any of the transactions
contemplated hereby or (b) which is reasonably likely to have a Material Adverse
Effect.
SECTION 3.07. No Default. Neither the Guarantor nor any of its Subsidiaries
is in default under or with respect to any of its Contractual Obligations in any
respect which is reasonably likely to have a Material Adverse Effect. No Default
or Event of Default has occurred and is continuing.
SECTION 3.08. Ownership of Property; Liens. Each of the Guarantor and its
Subsidiaries has such title to, or leasehold, contractual or other interests in,
its material properties as is required for it to operate its business in the
manner in which it is currently operating, and none of such property is subject
to any Lien except (a) as
43
permitted by Section 6.02 or (b) to the extent that the existence of all such
Liens, in the aggregate, is not reasonably likely to have a Material Adverse
Effect.
SECTION 3.09. Taxes. Each of the Guarantor and its Subsidiaries has filed
or caused to be filed all material tax returns which, to the knowledge of the
Guarantor or any of its Subsidiaries, are required to be filed and has paid all
taxes shown to be due and payable on said returns or on any assessments made
against it or any of its property and all other material taxes, fees or other
charges imposed on it or any of its property by any Governmental Authority
(other than any the amount or validity of which is currently being contested in
good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Guarantor or its
Subsidiaries, as the case may be or where the failure to pay such amounts or
file such returns is not reasonably likely to have a Material Adverse Effect);
no tax Lien has been filed (except to the extent that it constitutes a Permitted
Lien).
SECTION 3.10. Federal Regulations. No part of the proceeds of any Loans
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U or for any
purpose which violates the provisions of the Regulations of the Board of
Governors of the Federal Reserve System. If requested by any Lender or any
Agent, the Company will furnish to each Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form U-1 referred to
in Regulation U.
SECTION 3.11. ERISA. No Reportable Event has occurred during the five-year
period prior to the date on which this representation is made or deemed made
with respect to any Plan, and each Plan has complied in all material respects
with the applicable provisions of ERISA and the Code. The present value of all
accrued benefits under each Single Employer Plan maintained by the Guarantor or
any of its Subsidiaries or any Commonly Controlled Entity (based on those
assumptions used to fund the Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits.
Neither the Guarantor nor any of its Subsidiaries nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan
which is reasonably likely to have a Material Adverse Effect, and neither the
Guarantor nor any of its Subsidiaries nor any Commonly Controlled Entity would
become subject to any liability under ERISA which is reasonably likely to have a
Material Adverse Effect if the Guarantor or any of its Subsidiaries or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent. Except as Publicly Disclosed, the present value
(determined using actuarial and other assumptions which are reasonable in
respect of the benefits provided and the employees participating) of the
liability of the Guarantor and each of its Subsidiaries and each Commonly
Controlled Entity for post retirement benefits to be provided to their current
and former employees under Plans which are welfare benefit plans (as defined in
Section 3(1) of ERISA) does not, in the aggregate, exceed the assets under all
such Plans allocable to such benefits by an amount which is reasonably likely to
have a Material Adverse Effect.
44
SECTION 3.12. Investment Company Act; Other Regulations. Neither the
Guarantor nor any Borrower is an "investment company", or a company "controlled"
by an "investment company", within the meaning of the Investment Company Act of
1940, as amended. Neither the Guarantor nor any Borrower is subject to
regulation under any Federal or state statute or regulation which requires
notice to, or consent or approval of, any Governmental Authority to permit it to
incur or guarantee Indebtedness.
SECTION 3.13. Purpose of Loans. The proceeds of the Loans and the Letters
of Credit shall be used to repay amounts outstanding, if any, under the Existing
Credit Agreements and for working capital and general corporate purposes
(including, without limitation, to backstop commercial paper).
SECTION 3.14. Environmental Matters. Except as Publicly Disclosed, to the
knowledge of the Guarantor (after reasonable inquiry), each of the
representations and warranties set forth in paragraphs (a) through (e) of this
Section is true and correct with respect to the parcels of real property
currently or formerly owned or operated by the Guarantor or any of its
Subsidiaries (the "Properties") and, in the case of paragraphs (c) and (e), with
respect to the Guarantor and its Subsidiaries, except to the extent that any
failures of paragraphs (a) through (f) to be so true and correct have not and
are not reasonably likely to result in a Material Adverse Effect:
(a) The Properties do not contain any Hazardous Materials in concentrations
that violate Environmental Laws.
(b) The Properties, as well as all operations and facilities at the
Properties, have been and are in compliance with all Environmental Laws.
(c) Neither the Guarantor nor any of its Subsidiaries has received any
claim, complaint, notice of violation, alleged violation, investigation or
advisory action concerning potential liability or potential responsibility under
any Environmental Law, including common law, nor is the Guarantor aware that any
Governmental Authority is threatening to deliver to the Guarantor or any of its
Subsidiaries any such notice.
(d) Hazardous Materials have not been (i) generated, treated, used, stored,
released or disposed of, at, on or under any of the Properties or (ii)
transferred from the Properties to any other location, in either case in
violation of any Environmental Law.
(e) There are no governmental or administrative actions or judicial
proceedings pending or threatened under any Environmental Laws involving or
relating to the Properties nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with respect to
any of the Properties, the Guarantor or any of its Subsidiaries.
(f) Neither the Company nor any of the Subsidiaries has retained or
assumed, by contract or operation of law, any liabilities or obligations that
could reasonably be expected to provide the basis for any material liability
under any Environmental Law.
45
ARTICLE IV
Conditions
SECTION 4.01. Conditions to Effectiveness. The occurrence of the Effective
Date is subject to the satisfaction on or before August 20, 2004, of the
following conditions precedent:
(a) Executed Agreement. The Administrative Agent shall have received a
counterpart of this Agreement (or a telecopy transmission of a signature page of
this Agreement), executed and delivered by a duly authorized officer of each of
the Guarantor, the Company and each Lender listed on Schedule 2.01.
(b) Legal Opinions. The Administrative Agent shall have received the
executed legal opinion of the Company's in-house legal counsel, dated the
Effective Date and addressed to the Administrative Agent and the Lenders,
substantially in the form of Exhibit B-1, which legal opinion shall cover such
other matters incident to the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.
(c) Corporate Proceedings of the Guarantor. The Administrative Agent shall
have received a copy of the resolutions, in form and substance satisfactory to
the Administrative Agent, of the Board of Directors (or the Management Committee
thereof) of the Guarantor authorizing (i) the execution, delivery and
performance of this Agreement, and (ii) the obligations of the Guarantor
contemplated hereunder, certified by the Secretary or an Assistant Secretary of
the Guarantor as of the Effective Date, which certificate shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded and are in full force and effect and shall be in form and substance
satisfactory to the Administrative Agent.
(d) Corporate Proceedings of the Company. The Administrative Agent shall
have received a copy of the resolutions, in form and substance satisfactory to
it, of the Board of Directors (or the Management Committee thereof) of the
Company authorizing (i) the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party and (ii) the
extensions of credit contemplated hereunder, certified by the Secretary or an
Assistant Secretary of the Company as of the Effective Date, which certificate
shall state that the resolutions thereby certified have not been amended,
modified, revoked or rescinded and are in full force and effect and shall be in
form and substance satisfactory to the Administrative Agent.
(e) Corporate Documents. The Administrative Agent shall have received true
and complete copies of the certificate of incorporation and by-laws or other
organizational documents of the Guarantor and the Company, certified as of the
Effective Date as complete and correct copies thereof by the Secretary or an
Assistant Secretary of the Guarantor or the Company.
46
(f) Incumbency Certificates. The Administrative Agent shall have received a
certificate of the Secretary or an Assistant Secretary of the Guarantor and the
Company, as to the incumbency and signature of the officers signing each of the
Loan Documents to which it is a party and any other certificate or other
document delivered pursuant thereto, together with evidence of the incumbency of
such Secretary or Assistant Secretary.
(g) No Violation. The consummation of the transactions contemplated hereby
shall not contravene, violate or conflict with, nor involve any Agent or any
Lender in any violation of, any Requirement of Law.
(h) Consents, Licenses and Approvals. All consents, authorizations and
filings referred to in Section 3.04, if any, shall be in full force and effect,
and each such consent, authorization and filing shall be in form and substance
satisfactory to the Administrative Agent.
(i) Fees. The Administrative Agent shall have received the fees to be
received by it on the Effective Date.
(j) No Legal Restraints. There shall not be (i) any litigation,
investigation or proceeding of or before any court, arbitrator or other
Governmental Authority to which the Guarantor or any of its Subsidiaries is a
party, or which is pending or, to the knowledge of the Guarantor, threatened
against the Guarantor, its Subsidiaries or any of their respective properties or
revenues with respect to this Agreement or any of the transactions contemplated
hereby, which is reasonably likely to have a Material Adverse Effect or a
Material Enforceability Effect nor (ii) any injunction, writ, temporary
restraining order or any order of any nature issued by any court or other
Governmental Authority and served on or otherwise known to the Guarantor or any
of its Subsidiaries directing that the transactions provided for herein not be
consummated as herein provided. No change shall have occurred in any Requirement
of Law or in interpretations thereof by appropriate Governmental Authorities
which would make it illegal for any Agent or any Lender to make extensions of
credit hereunder or which would subject any Agent or any Lender (in its sole
judgment) to any penalty or other liability as a result of making extensions of
credit hereunder or otherwise performing under this Agreement.
(k) Additional Documents. The Administrative Agent shall have received each
additional document, instrument, legal opinion or item of information reasonably
requested by it, including, without limitation, a copy of any debt instrument,
security agreement or other material contract to which the Guarantor or the
Company may be a party.
(l) Existing Credit Agreements. The commitments of the lenders under the
Existing Credit Agreements shall have been terminated and the principal of and
interest accrued on all loans, and all other amounts accrued for the accounts of
or owing to the lenders, thereunder shall have been paid.
47
(m) USA Patriot Act. The Administrative Agent and the Lenders shall have
received all documentation and other information required by bank regulatory
authorities under applicable "know your customer" and anti-money laundering
rules and regulations, including the USA Patriot Act.
(n) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement shall be satisfactory in form and
substance to the Administrative Agent.
SECTION 4.02. Conditions to Initial Extension of Credit to Any Borrowing
Subsidiary. The agreement of each Lender and each Issuing Bank to make the
initial extension of credit requested to be made by it to each Borrowing
Subsidiary is subject to the satisfaction of the following conditions:
(a) Loan Documents. The Administrative Agent shall have received a Joinder
Agreement, conforming to the requirements hereof, executed and delivered by a
duly authorized officer of each of such Borrowing Subsidiary, the Guarantor and
the Company.
(b) Legal Opinions. The Administrative Agent shall have received:
(i) the executed legal opinion of in-house counsel reasonably
acceptable to the Administrative Agent, dated the date of such Borrowing
Subsidiary's initial borrowing and addressed to the Administrative Agent
and the Lenders, containing opinions substantially in the form of Exhibit
B-2, with such assumptions, qualifications and exceptions as the
Administrative Agent may approve; and
(ii) the executed legal opinion of in-house counsel of the Guarantor
and the Company reasonably acceptable to the Administrative Agent, dated
the date of such Borrowing Subsidiary's initial borrowing and addressed to
the Administrative Agent and the Lenders, containing opinions substantially
in the form of Exhibit B-3, with such assumptions, qualifications and
exceptions as the Administrative Agent may approve.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
(c) Corporate Proceedings of Borrowing Subsidiary. The Administrative Agent
shall have received a copy of the resolutions, in form and substance
satisfactory to the Administrative Agent, of the Board of Directors (or the
Management Committee thereof) of such Borrowing Subsidiary authorizing (i) the
execution, delivery and performance of the Joinder Agreement (including, without
limitation, the assumption of obligations under this Agreement) and the other
Loan Documents to which it is a party and (ii) the extensions of credit
contemplated hereunder, certified by the Secretary or an Assistant Secretary of
such Borrowing Subsidiary as of a date not more than five days
48
prior to the Borrowing Date, which certificate shall state that the resolutions
thereby certified have not been amended, modified, revoked or rescinded and are
in full force and effect and shall be in form and substance satisfactory to the
Administrative Agent.
(d) Corporate Documents. The Administrative Agent shall have received true
and complete copies of the certificate of incorporation and by-laws or other
organizational documents of such Borrowing Subsidiary, certified as of a date
not more than five days prior to the Borrowing Date as complete and correct
copies thereof by the Secretary or an Assistant Secretary of such Borrowing
Subsidiary.
(e) Incumbency Certificate. The Administrative Agent shall have received a
certificate of the Secretary or an Assistant Secretary of such Borrowing
Subsidiary, as to the incumbency and signature of the officers signing each of
the Loan Documents to which it is a party and any other certificate or other
document delivered pursuant thereto, together with evidence of the incumbency of
such Secretary or Assistant Secretary.
(f) No Violation. The consummation of the transactions contemplated hereby
(after giving effect to the borrowing by, and other extensions of credit to,
such Borrowing Subsidiary) shall not contravene, violate or conflict with, nor
involve any Agent or any Lender in any violation of, any Requirement of Law.
(g) Consents, Licenses and Approvals. The Administrative Agent shall have
received a certificate of a Responsible Officer of such Borrowing Subsidiary (i)
attaching copies of all consents, authorizations and filings referred to in
Section 3.04, if any, and (ii) stating that such consents, licenses and filings
are in full force and effect, and each such consent, authorization and filing
shall be in form and substance satisfactory to the Administrative Agent.
(h) No Legal Restraints. There shall not be (i) any litigation,
investigation or proceeding of or before any court, arbitrator or other
Governmental Authority to which such Borrowing Subsidiary is a party, or which
is pending or threatened against it, its Subsidiaries or any of their respective
properties or revenues with respect to this Agreement or any of the transactions
contemplated hereby, which is reasonably likely to have a Material Adverse
Effect or a Material Enforceability Effect nor (ii) any injunction, writ,
temporary restraining order or any order of any nature issued by any court or
other Governmental Authority and served on or otherwise known to such Borrowing
Subsidiary directing that the transactions provided for herein not be
consummated as herein provided, and the Administrative Agent shall have received
a certificate of a Responsible Officer of such Borrowing Subsidiary to the
foregoing effect. No change shall have occurred in any Requirement of Law or in
interpretations thereof by appropriate Governmental Authorities which would make
it illegal for any Agent or any Lender to make extensions of credit hereunder or
which would subject any Agent or any Lender (in its sole judgment) to any
penalty or other liability as a result of making extensions of credit hereunder
or otherwise performing under this Agreement.
49
(i) Additional Documents. The Administrative Agent shall have received each
additional document, instrument, legal opinion or item of information reasonably
requested by it, including a copy of any debt instrument, security agreement or
other material contract to which such Borrowing Subsidiary may be a party.
(j) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement shall be satisfactory in form and
substance to the Administrative Agent.
SECTION 4.03. Conditions to Each Extension of Credit. The agreement of each
Lender and each Issuing Bank to make any extension of credit requested to be
made by it (other than any conversion of any outstanding Revolving Loan to a
Loan of another Type at the end of an Interest Period or any continuation of any
outstanding Revolving Loan as a Loan of the same Type for a succeeding Interest
Period, which shall not be deemed to be a new extension of credit hereunder) to
any Borrower on any date (including, without limitation, its initial extension
of credit hereunder and its initial extension of credit to each Borrower) is
subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Guarantor, the Company and such Borrower in or pursuant
to the Loan Documents shall be true and correct in all material respects on and
as of such date as if made on and as of such date except the representations and
warranties made by the Guarantor, the Company and such Borrower in Sections
3.02, 3.06 and 3.14 of this Agreement.
(b) No Default. No Default or Event of Default shall have occurred and be
continuing on such date or after giving effect to the Loans or the issuance,
amendment, renewal or extension of a Letter of Credit requested to be made on
such date.
Each borrowing by any Borrower hereunder shall constitute a representation
and warranty by such Borrower as of the date of such extension of credit that
the conditions contained in this Section 4.03 have been satisfied.
ARTICLE V
Affirmative Covenants
In the case of Section 5.09, the Guarantor hereby agrees, and, in the case
of each other covenant in this Article, the Guarantor and the Company hereby
jointly and severally agree, that, so long as the Commitments remain in effect,
any Loan remains outstanding and unpaid, any Letter of Credit remains
outstanding, any LC Disbursement remains unreimbursed or any other amount is
owing to any Lender hereunder, the Guarantor and the Company shall and (except
in the case of delivery of financial information, reports and notices pursuant
to Sections 5.01, 5.02 and 5.07) shall cause each of its Significant
Subsidiaries to:
50
SECTION 5.01. Financial Statements. (a) Furnish to each Lender:
(i) as soon as available, but in any event within 120 days after the
end of each fiscal year of the Guarantor, a copy of the consolidated
balance sheet of the Guarantor and its consolidated Subsidiaries as at the
end of such year and the related consolidated statements of earnings,
stockholders' equity and cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by
PricewaterhouseCoopers LLP or other independent certified public
accountants of nationally recognized standing; and
(ii) as soon as available, but in any event not later than 60 days
after the end of each of the first three quarterly periods of each fiscal
year of the Guarantor, (A) the unaudited consolidated balance sheet of the
Guarantor and its consolidated Subsidiaries as at the end of such quarter
and in comparative form the figures for the end of the previous fiscal
year, (B) the unaudited consolidated statement of earnings of the Guarantor
and its consolidated Subsidiaries for such quarter and the portion of the
fiscal year through the end of such quarter, and in comparative form the
figures for the previous year, and (C) the unaudited consolidated statement
of cash flows of the Guarantor and its consolidated Subsidiaries for the
portion of the fiscal year through the end of such quarter, and in
comparative form the figures for the previous year;
all such financial statements to be complete and correct in all material
respects (subject to any qualifications which may be set forth in the notes
therein in accordance with GAAP) and to be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods reflected
therein and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein).
(b) Information required to be delivered pursuant to Section 5.01(a) shall
be deemed to have been delivered on the date on which the Guarantor and the
Company provide notice to the Lenders that such information has been posted on
the Guarantor's website on the Internet at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇ or at
▇▇▇▇://▇▇▇.▇▇▇.▇▇▇; provided that such notice may be included in the
certificates delivered pursuant to Section 5.02(a) and provided further that the
Guarantor and the Company shall deliver paper copies of the information referred
to in Section 5.01(a) after the date delivery is required thereunder to any
Lender which requests such delivery within 5 Business Days after such request.
SECTION 5.02. Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements referred to
in Section 5.01(a), a certificate of a Responsible Officer of the Guarantor and
the Company, (i) stating that, to the best of such Responsible Officer's
knowledge, the Guarantor and the Company, as the case may be, during such period
has observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in this
51
Agreement and the other Loan Documents to which it is a party to be observed,
performed or satisfied by it, (ii) stating that such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as specified in
such certificate, (iii) stating that the financial statements concurrently
delivered pursuant to Section 5.01(a) are fairly stated in all material respects
when considered in relation to the annual consolidated financial statements of
the Guarantor and its consolidated Subsidiaries, subject to normal year-end
audit adjustments and (iv) in the case of such certificate of a Responsible
Officer of the Guarantor and the Company showing in detail the calculations
demonstrating compliance with Section 6.01 at the end of such fiscal quarter;
(b) within thirty days after the same are sent, copies of all financial
statements and reports which the Guarantor sends to its stockholders, and within
thirty days after the same are filed, copies of all financial statements and
reports which the Guarantor and the Company may make to, or file with, the
Securities and Exchange Commission or any successor or analogous Governmental
Authority; and
(c) promptly, such additional financial and other information as the
Administrative Agent, on behalf of any Lender, may from time to time reasonably
request.
SECTION 5.03. Payment of Obligations. Pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be, all
its material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Guarantor, the Company or their respective Significant
Subsidiaries, as the case may be or where the failure to pay such obligations is
not reasonably likely to have a Material Adverse Effect.
SECTION 5.04. Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by it and preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business, except to the extent (a)
otherwise permitted pursuant to Section 6.03 or (b) that all failures to do so
are not, in the aggregate, reasonably likely to have a Material Adverse Effect
or a Material Enforceability Effect; comply with all Contractual Obligations and
Requirements of Law (including, without limitation, all requirements under ERISA
but excluding all requirements under Environmental Laws) except to the extent
that all failures to comply therewith are not, in the aggregate, reasonably
likely to have a Material Adverse Effect or a Material Enforceability Effect.
SECTION 5.05. Maintenance of Property; Insurance. Keep all property useful
and necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies casualty insurance and
insurance on all its property in such amounts and against such risks, and other
insurance in such
52
amounts and against such risks, as are similar to those usually insured against
in the same general area by companies engaged in the same or a similar business;
and furnish to each Lender, upon written request, full information as to the
insurance carried; provided, however, that the Company may maintain
self-insurance plans to the extent companies of similar size and in similar
businesses do so.
SECTION 5.06. Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and when reasonably
deemed advisable by the Administrative Agent, permit the Administrative Agent
(accompanied, where reasonable, by representatives of any Lender) to visit and
inspect any of its properties and examine and make abstracts from any of its
books and records at any reasonable time and as often as may reasonably be
desired and to discuss the business, operations, properties and financial and
other condition of the Guarantor and its Significant Subsidiaries with officers
and employees of the Guarantor and its Significant Subsidiaries and with its
independent certified public accountants.
SECTION 5.07. Notices. Promptly give notice to the Administrative Agent
(which shall promptly transmit such notice to each Lender) of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation of
the Guarantor or any of its Significant Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time affecting the Guarantor
or any of its Significant Subsidiaries which in either case, if not cured or if
adversely determined, as the case may be, is reasonably likely to have a
Material Adverse Effect or a Material Enforceability Effect; and
(c) the following events, as soon as possible and in any event within 30
days after the Guarantor knows or has reason to know thereof: (i) the occurrence
or expected occurrence of any Reportable Event with respect to any Plan, or any
withdrawal from, or the termination, Reorganization or Insolvency of any
Multiemployer Plan which could result in a liability to the Guarantor or any of
its Significant Subsidiaries in excess of $5,000,000 or (ii) the institution of
proceedings or the taking of any other action by the PBGC or the Guarantor or
any of its Significant Subsidiaries or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the terminating,
Reorganization or Insolvency of, any Plan.
Each notice pursuant to this Section shall be accompanied by a statement of
a Responsible Officer of the Guarantor setting forth details of the occurrence
referred to therein and stating what action the Guarantor and/or any of its
Significant Subsidiaries propose to take with respect thereto.
SECTION 5.08. Environmental Laws. (a) Comply with and take reasonable efforts
to ensure compliance by all tenants and subtenants, if any, with, all
53
Environmental Laws and obtain and comply with and maintain, and take reasonable
efforts to ensure that all tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, registrations or permits required by
Environmental Laws, except to the extent that failure to do so is not reasonably
likely to have a Material Adverse Effect or a Material Enforceability Effect;
(b) Conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under Environmental Laws
and promptly comply with all lawful orders and directives of all Governmental
Authorities respecting Environmental Laws, except to the extent that failure to
do so is not reasonably likely to have a Material Adverse Effect or a Material
Enforceability Effect, or the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings is not reasonably
likely to have a Material Adverse Effect or a Material Enforceability Effect;
and
(c) Defend, indemnify and hold harmless the Agents, the Issuing Banks and
the Lenders, and their respective employees, agents, officers and directors,
from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to the
violation of or noncompliance with, or liability under, any Environmental Law
and relating to the Properties or to any Borrower (or its predecessors), or any
orders, requirements or demands of Governmental Authorities related thereto,
including, without limitation, attorney's and consultant's fees, investigation
and laboratory fees, court costs and litigation expenses, except to the extent
that any of the foregoing arise out of the gross negligence or willful
misconduct of the party seeking indemnification therefor.
SECTION 5.09. Ownership of the Company and Borrowing Subsidiaries. Continue
to own, directly or through one or more wholly-owned Subsidiaries, free of any
Lien, 100% of each class of capital stock of the Company and the majority of
each class of capital stock of each Borrowing Subsidiary.
SECTION 5.10. USA Patriot Act. Promptly following any request therefore,
all documentation and other information required by bank regulatory authorities
under applicable "know your customer" and anti-money laundering rules and
regulations, including the USA Patriot Act.
ARTICLE VI
Negative Covenants
The Guarantor and the Company hereby jointly and severally agree that, so
long as the Commitments remain in effect, any Loan remains outstanding and
unpaid, any Letter of Credit remains outstanding, any LC Disbursement remains
unreimbursed or any other amount is owing to any Lender hereunder, the Guarantor
and the Company
54
shall not, and (except in the case of Section 6.01) shall not permit any of
their respective Subsidiaries to, directly or indirectly:
SECTION 6.01. Leverage Ratio. Permit the ratio of (a) Consolidated Debt to
(b) the sum of Total Stockholders' Equity plus Consolidated Debt, as at the end
of any fiscal quarter of the Guarantor, to exceed 0.70 to 1.
SECTION 6.02. Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for Permitted Liens.
SECTION 6.03. Limitations on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets unless (a) such transaction is not likely to have a Material Adverse
Effect or a Material Enforceability Effect, or make any material change in the
present line of business of the Guarantor and its Subsidiaries taken as a whole,
(b) if such transaction involves the Guarantor or the Company, the Guarantor or
the Company, as the case may be, is the surviving entity and (c) no Default or
Event of Default shall have occurred and be continuing.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) Any Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise; or any Borrower shall fail to pay any
interest on any Loan or any fee payable to any Lender or any Agent, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of five days; or any Borrower shall fail to pay any
other amount payable hereunder within thirty days after such amount becomes due
in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by the Guarantor or
any Borrower herein or in any other Loan Document or which is contained in any
certificate, document or financial or other statement furnished at any time
under or in connection with this Agreement shall prove to have been incorrect in
any material respect on or as of the date made or deemed made; or
(c) The Guarantor or the Company shall default in the observance or
performance of any agreement contained in (i) Article V and such default shall
continue unremedied or unwaived for a period of 30 days after receipt by the
Company of written notice of such default from the Administrative Agent or (ii)
Article VI; or
55
(d) The Guarantor or any Borrower shall default in the observance or
performance of any other agreement contained in this Agreement (other than as
provided in paragraphs (a) through (c) and (e) of this Article), and such
default shall continue unremedied or unwaived for a period of 30 days after
receipt by the Company of written notice of such default from the Administrative
Agent; or
(e) The Guarantor or any of the Significant Subsidiaries shall (i) default
in any payment of principal of or interest on any Indebtedness (other than the
Loans) in a principal amount outstanding of at least $100,000,000 in the
aggregate for the Guarantor and the Significant Subsidiaries (such Indebtedness
referred to herein as "Material Indebtedness") or in the payment of any matured
Guarantee Obligations in a principal amount outstanding of at least $100,000,000
in the aggregate for the Guarantor and the Significant Subsidiaries (any such
Guarantee Obligation referred to herein as a "Material Guarantee Obligation"),
beyond the period of grace (not to exceed 30 days), if any, provided in the
instrument or agreement under which such Material Indebtedness or Material
Guarantee Obligation was created; or (ii) any other event shall occur or
condition exist (other than any mandatory prepayment event not arising out of a
default in performance by the Guarantor or any Significant Subsidiary of any
obligations relating to any Material Indebtedness or any Material Guarantee
Obligation) under any agreement relating to such Material Indebtedness or such
Material Guarantee Obligation which, in either case, results in such Material
Indebtedness or such Material Guarantee Obligation becoming due and payable
prior to maturity; provided, that any drawing or payment under a Guarantee
Obligation, (including any letter of credit or similar instrument issued for the
account of the Guarantor or any Significant Subsidiary and backing, or
constituting the payment mechanism for, any primary obligation of the Guarantor
or any Significant Subsidiary) shall not constitute an Event of Default under
this paragraph if such drawing or payment is not a result of a default in
performance by the Guarantor or any Significant Subsidiary of any obligation
relating to such primary obligation or such Guarantee Obligation; provided
further, that no event described above in this paragraph with respect to any
Project Indebtedness shall constitute an Event of Default unless and until,
after giving effect to such event and all other events affecting such Project
Indebtedness or the related Project, the Guarantor or any Significant Subsidiary
(other than any Project Company related to the Project financed by such Project
Indebtedness) shall be liable for such Project Indebtedness under any Guarantee
Obligation (and in determining the amount of any Project Indebtedness for
purposes of this paragraph, only the amount for which the Guarantor or any
Significant Subsidiary (other than any Project Company related to the Project
financed by such Project Indebtedness) shall or would be so liable shall be
included); or
(f) (i) The Guarantor or any of the Significant Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or the Guarantor or any
56
of the Significant Subsidiaries shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Guarantor or any
of the Significant Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Guarantor or any of the Significant Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) the Guarantor or any of the
Significant Subsidiaries shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) the Guarantor or any of the Significant
Subsidiaries shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as defined
in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii)
any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, (iv) any Single Employer Plan, which Reportable Event or commencement
of proceedings or appointment of a trustee is, in the reasonable opinion of the
Required Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (v) any Single Employer Plan shall terminate for purposes
of Title IV of ERISA, (vi) the Guarantor, any of its Subsidiaries or any
Commonly Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a withdrawal from,
or the Insolvency or Reorganization of, a Multiemployer Plan or (vii) any other
event or condition shall occur or exist, with respect to a Plan; and in each
case in clauses (i) through (vii) above, such event or condition, together with
all other such events or conditions, if any, could reasonably be likely to have
a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the Guarantor
and/or any Significant Subsidiary involving in the aggregate a liability (not
paid or fully covered by insurance) of $100,000,000 or more and all such
judgments or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 30 days from the entry thereof;
(i) The Guarantor or the Company, as the case may be, shall cease to own,
directly or through one or more wholly-owned Subsidiaries, 100% of each class of
capital stock of the Company and the majority of each class of capital stock of
each Borrowing Subsidiary; or
(j) On or after the Effective Date (i) any of the guarantees contained in
Article IX shall cease to be or shall not be enforceable or (ii) either the
Guarantor or any
57
Borrower shall assert in writing that any such guarantee has ceased to be or is
not enforceable;
then, and in every such event (other than an event described in clause (i) or
(ii) of paragraph (f) above), and at any time thereafter during the continuance
of such event, the Administrative Agent may, and at the request of the Required
Lenders shall, by notice to the Company, take either or both of the following
actions, at the same or different times: (i) terminate the Commitments, and
thereupon the Commitments shall terminate immediately and (ii) declare the Loans
then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Borrower; and in case of any event
described in clause (i) or (ii) of paragraph (f) above, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrowers accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Borrower.
ARTICLE VIII
The Agents
In order to expedite the transactions contemplated by this Agreement,
JPMorgan Chase Bank and Citicorp USA, Inc. are hereby appointed to act as
Administrative Agent and Syndication Agent, respectively, on behalf of the
Lenders. Each of the Lenders and each of the Issuing Banks hereby irrevocably
authorizes the Agents to take such actions on its behalf and to exercise such
powers as are delegated to the Agents by the terms hereof, together with such
actions and powers as are reasonably incidental thereto.
Each bank serving as Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as
though it were not an Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
any Borrower, the Guarantor or any Subsidiary or other Affiliate thereof as if
it were not an Agent hereunder.
The Agents shall not have any duties or obligations except those expressly
set forth herein. Without limiting the generality of the foregoing, (a) the
Agents shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default has occurred and is continuing, (b) the Agents shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby
that the Agents are required to exercise in writing
58
by the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 10.02), and
(c) except as expressly set forth herein and in the other Loan Documents, no
Agent shall have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to any Borrower, the Guarantor or any
Subsidiary that is communicated to or obtained by the bank serving as Agent or
any of its Affiliates in any capacity. No Agent shall be liable for any action
taken or not taken by it with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 10.02) or in the absence of its
own gross negligence or willful misconduct. No Agent shall be deemed to have
knowledge of any Default unless and until written notice thereof is given to
such Agent by the Company or a Lender, and no Agent shall be responsible for or
have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to such Agent. None of the
Lenders identified on the facing page or signature pages or elsewhere herein as
"syndication agent" or "documentation agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for the
Borrowers), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its rights and
powers by or through any one or more sub-agents appointed by such Agent. Such
Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through its respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of such Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent as provided
in this paragraph, any Agent may resign at any time by notifying the Lenders,
the Issuing Banks and the Company. Upon any such resignation, the Required
Lenders shall have the right, in consultation with the Company, to appoint a
successor. If no
59
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice
of its resignation, then the retiring Agent may, on behalf of the Lenders and
the Issuing Banks, appoint a successor Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations hereunder. The fees payable by the Borrowers to a
successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Company and such successor. After an Agent's
resignation hereunder, the provisions of this Article and Section 10.03 shall
continue in effect for the benefit of such retiring Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while it was acting as Agent.
Each Lender acknowledges that it has, independently and without reliance
upon any Agent or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon any Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder
or thereunder.
None of the Lenders or other persons identified on the facing page of this
Agreement as a "syndication agent" shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders. Without limiting the foregoing, none of the Lenders
or other persons so identified shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, on any of the Lenders or other persons so identified in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
ARTICLE IX
Guarantees
SECTION 9.01. Guarantees. In order to induce the Agents and the Lenders to
execute and deliver this Agreement and to make Loans hereunder, and in
consideration thereof:
(a) The Guarantor hereby unconditionally and irrevocably guarantees to each
Agent and each Lender and their respective successors and assigns, the prompt
and complete payment when due (whether at the stated maturity, by acceleration
or otherwise, but subject to applicable grace periods contained herein) of the
Obligations and the Subsidiary Obligations, and the Guarantor further agrees to
pay any and all expenses
60
which may be paid or incurred by any Agent or any Lender in collecting any or
all of the Obligations or the Subsidiary Obligations and/or enforcing any rights
under this Article or under the Obligations or the Subsidiary Obligations. Upon
failure by any Borrower to pay punctually any of the Obligations or the
Subsidiary Obligations promptly when due, the Guarantor shall forthwith on
demand pay the amount not so paid at the place and in the manner, currency and
type of funds specified for such payment in this Agreement.
(b) The Company hereby unconditionally and irrevocably guarantees to each
Agent and each Lender and their respective successors and assigns, the prompt
and complete payment when due (whether at the stated maturity, by acceleration
or otherwise, but subject to applicable grace periods contained herein) of the
Subsidiary Obligations, and the Company further agrees to pay any and all
expenses which may be paid or incurred by any Agent or any Lender in collecting
any or all of the Subsidiary Obligations and/or enforcing any rights under this
Article or under the Subsidiary Obligations. Upon the failure by any Borrower to
pay punctually any of the Subsidiary Obligations promptly when due, the Company
shall forthwith on demand pay the amount not so paid at the place and in the
manner, currency and type of funds specified for such payment in this Agreement.
SECTION 9.02. Subrogation, Contribution; Reimbursement or Indemnity. (a)
Upon making any payment with respect to the Obligations under this Article, the
Guarantor shall be subrogated to the rights of the payee against the Company
with respect to such payment. However, so long as (i) any Lender has any
Commitment hereunder or (ii) any Obligation remains outstanding, the Guarantor
shall not enforce any payment by way of subrogation against the Company or
against any collateral security or guarantee or right of offset held by any
Agent or any Lender for the payment of the Obligations or any contractual,
common law, statutory or other rights of reimbursement, contribution,
exoneration or indemnity (or any similar right) from or against the Company
which may have arisen in connection with the Guarantor's guarantees contained in
this Article.
(b) Upon making any payment with respect to the Subsidiary Obligations
under this Article, the Company shall be subrogated to the rights of the payee
against the relevant Borrowing Subsidiary with respect to such payment. However,
so long as (i) any Lender has any Commitment hereunder under which such
Borrowing Subsidiary is or may become entitled to borrow or (ii) any Subsidiary
Obligations of such Borrowing Subsidiary remain outstanding, the Company shall
not enforce any payment by way of subrogation against such Borrowing Subsidiary
or against any collateral security or guarantee or right of offset held by any
Agent or any Lender for the payment of its Subsidiary Obligations or any
contractual, common law, statutory or other rights of reimbursement,
contribution, exoneration or indemnity (or any similar right) from or against
such Borrowing Subsidiary which may have arisen in connection with the Company's
guarantees contained in this Article.
(c) So long as any Lender has a Commitment hereunder under which a
Borrowing Subsidiary is or may become entitled to borrow or any Obligations
remain outstanding, if any amount shall be paid by or on behalf of the Company
to the Guarantor
61
on account of any of the rights referred to in this Section 9.02, such amount
shall be held by the Guarantor in trust, segregated from other funds of the
Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned over to
the Administrative Agent in the exact form received by the Guarantor (duly
indorsed by the Guarantor to the Administrative Agent, if required), to be
applied against the Obligations, whether matured or unmatured, as provided in
Section 2.17.
(d) So long as any Lender has a Commitment hereunder under which a
Borrowing Subsidiary is or may become entitled to borrow or any Subsidiary
Obligations of a Borrowing Subsidiary remain outstanding, if any amount shall be
paid by or on behalf of such Borrowing Subsidiary to the Guarantor or the
Company, on account of any of the rights referred to in this Section 9.02, such
amount shall be held by the Guarantor or the Company, as the case may be, in
trust, segregated from other funds of the Guarantor or the Company, as the case
may be, and shall, forthwith upon receipt by the Guarantor or the Company, as
the case may be, be turned over to the Administrative Agent in the exact form
received by the Guarantor or the Company, as the case may be (duly indorsed to
the Administrative Agent, if required), to be applied against the Subsidiary
Obligations of such Borrowing Subsidiary, whether matured or unmatured, as
provided in Section 2.17.
(e) The provisions of this Section shall survive the termination of the
guarantees contained in this Article and the payment in full of the Obligations
and the Subsidiary Obligations, and the termination of the Commitments.
SECTION 9.03. Modification of Obligations. Each of the Guarantor and the
Company hereby consents that, without the necessity of any reservation of rights
against it and without notice to or further assent by it, any demand for payment
of any of the Obligations or the Subsidiary Obligations made by any Agent or any
Lender may be rescinded by such Agent or such Lender and any of the Obligations
or the Subsidiary Obligations continued, and the Obligations and the Subsidiary
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
such Agent or such Lender and this Agreement (other than the obligations
specifically incurred by the Guarantor or the Company under this Article), any
collateral security document or other guarantee or document in connection
therewith may be amended, modified, supplemented or terminated, in whole or in
part, as such Agent or such Lender may deem advisable from time to time, and any
collateral security or guarantee or right of offset at any time held by any
Agent or any Lender for the payment of the Obligations or the Subsidiary
Obligations may be sold, exchanged, waived, surrendered or released, all without
the necessity of any reservations of rights against the Guarantor or the Company
and without notice to or further assent by the Guarantor or the Company (in
respect of its guarantee hereunder), each of which will remain bound hereunder
notwithstanding any such renewal, extension, supplement, termination, sale,
exchange, waiver, surrender or release. No Agent or Lender shall have any
obligation to protect, secure, perfect or insure any collateral security
document or property subject thereto at any time held as security for the
Obligations or the Subsidiary
62
Obligations. When making any demand hereunder against the Guarantor or the
Company, any Agent or any Lender may, but shall be under no obligation to, make
a similar demand on the Company or any Borrowing Subsidiary, as the case may be,
or upon any other guarantor, and any failure by such Agent or such Lender to
make any such demand or to collect any payments from the Company, any such
Borrowing Subsidiary or any such other guarantor or any release of the Company
or such Borrowing Subsidiary or such other guarantor shall not relieve the
Guarantor or the Company of its obligations and liabilities hereunder, and shall
not impair or affect the rights and remedies, express or implied, or as a matter
of law, of any Agent or any Lender against the Guarantor or the Company. For
purposes of this Section, the term "demand" shall include the commencement and
continuance of any legal proceedings.
SECTION 9.04. Waiver. Each of the Guarantor and the Company hereby waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations or Subsidiary Obligations and notice of or proof of reliance by any
Agent or any Lender upon the guarantees contained in this Article or acceptance
of the guarantees contained in this Article, and the Obligations and the
Subsidiary Obligations, and any of them, shall conclusively be deemed to have
been created, contracted or incurred in reliance upon the guarantees contained
in this Article, and all dealings between the Borrowing Subsidiaries, the
Company or the Guarantor and the Lenders shall likewise be conclusively presumed
to have been had or consummated in reliance upon the guarantees contained in
this Article. Each of the Guarantor and the Company hereby waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment and
all other notices to or upon the Guarantor or the Company with respect to the
Obligations and the Subsidiary Obligations. This Article shall be construed as
continuing, absolute and unconditional guarantees of payment without regard to
the validity, regularity or enforceability of this Agreement, any other Loan
Document, any of the Obligations or the Subsidiary Obligations, or any
collateral security or guarantee therefor or right of offset with respect
thereto at any time or from time to time held by any Agent or any Lender and
without regard to any defense, set-off or counterclaim which may at any time be
available to or be asserted by the Guarantor, the Company or any Borrowing
Subsidiary against any Agent or any Lender, or by any other circumstance
whatsoever (with or without notice to or knowledge of the Guarantor, the Company
or any Borrowing Subsidiary) (other than payment in full of the Obligations or
the Subsidiary Obligations, as the case may be) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Company or any
Borrowing Subsidiary for the Obligations or the Subsidiary Obligations, as the
case may be, or of the Guarantor or the Company under the guarantees contained
in this Article in bankruptcy or in any other instance, and the obligations and
liabilities of the Guarantor and the Company hereunder shall not be conditioned
or contingent upon the pursuit by any Agent or any Lender at any time of any
right or remedy against the Company, any Borrowing Subsidiary or any other
Person which may be or become liable in respect of all or any part of the
Obligations or Subsidiary Obligations or against any collateral security or
guarantee therefor or right of offset with respect thereto. The guarantees
contained in this Article shall remain in full force and effect and be binding
in accordance with and to the extent of their terms upon the Guarantor and the
Company (and any successors and assigns of either thereof) and shall inure to
the benefit of the Agents and the Lenders and
63
their respective successors and assigns, until (subject to Section 9.05) all the
Obligations and the Subsidiary Obligations and the obligations of the Guarantor
and the Company under this Article shall have been satisfied by payment in full
and all Commitments have been terminated, notwithstanding that from time to time
during the term of this Agreement the Company may be free from any Obligations
or any Borrowing Subsidiary may be free from any Subsidiary Obligations.
SECTION 9.05. Reinstatement. Each of the guarantees contained in this
Article shall continue to be effective, or be reinstated, as the case may be, if
at any time payment, or any part thereof, of any of the Obligations or the
Subsidiary Obligations is rescinded or must otherwise be restored or returned by
any Agent or any Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Company or any Borrowing Subsidiary, or
upon or as a result of the appointment of a receiver, intervener or conservator
of, or trustee or similar officer for, the Company or any substantial part of
its property, or any Borrowing Subsidiary or any substantial part of its
property or otherwise, all as though such payments had not been made.
SECTION 9.06. Payment of Obligations. Each of the Guarantor and the Company
hereby guarantees that the Obligations and the Subsidiary Obligations will be
paid to the Administrative Agent for the account of the Lenders or Agents
entitled thereto without set-off or counterclaim at the office of the
Administrative Agent specified in Section 10.01.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to a Borrower or the Guarantor, to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.,
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of the Treasurer (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to JPMorgan Chase Bank, Loan and
Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇),
with a copy to JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Attention of June Brand (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to the Syndication Agent, to ABN AMRO Bank N.V., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of Loan
Administration (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to ABN AMRO
64
Bank N.V., Three Riverway, Suite 1700, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(d) if to any other Lender or Issuing Bank, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by any Agent,
any Issuing Bank or any Lender in exercising any right or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Agents, the
Issuing Banks and the Lenders hereunder are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by a Borrower or the
Guarantor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
the issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether any Agent, any Lender or any Issuing Bank may
have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Company, the Guarantor and the Required Lenders or by the Company,
the Guarantor and the Agent with the consent of the Required Lenders; provided
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or any LC Disbursement or reduce the rate of interest thereon, or reduce any
fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the scheduled date of payment of the principal amount of
any Loan or any LC Disbursement, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.17(b) or (c) in a
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) change any of the provisions of
this Section or the definition of "Required Lenders" or any other provision
hereof specifying the number or percentage of Lenders required to waive, amend
or modify any rights hereunder or make any determination or grant any consent
hereunder, or (vi) release the Guarantor or the Company from their respective
obligations under Article IX without the written consent of each Lender;
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the any Agent or any Issuing Bank hereunder,
65
without the prior written consent of the such Agent or such Issuing Bank, as the
case may be. Notwithstanding the foregoing, any provision of this Agreement may
be amended by an agreement in writing entered into by the Company, the
Guarantor, the Required Lenders and the Administrative Agent if (i) by the terms
of such agreement the Commitment of each Lender not consenting to the amendment
provided for therein shall terminate upon the effectiveness of such amendment
and (ii) at the time such amendment becomes effective, each Lender not
consenting thereto receives payment in full of the principal of and interest
accrued on each Loan made by it and all other amounts owing to it or accrued for
its account under this Agreement.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The Borrowers shall
pay (i) all reasonable out-of-pocket expenses incurred by each Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Agents, in connection with the syndication of the credit facilities
provided for herein, the preparation and administration of this Agreement or any
amendments, modifications or waivers of the provisions hereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Banks in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by any Agent, any Issuing Bank or any Lender, including the fees, charges and
disbursements of any counsel for any Agent, any Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section, or in connection with
the Loans made hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans.
(b) Each Borrower shall indemnify each Agent, each Issuing Bank and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by an Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Guarantor, any Borrower or any
of its Subsidiaries, or any environmental liability related in any way to any
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from the gross negligence or willful
misconduct of such Indemnitee.
66
(c) To the extent that any Borrower fails to pay any amount required to be
paid by it to the Administrative Agent or any Issuing Bank under paragraph (a)
or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or any Issuing Bank, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or such Issuing Bank in its capacity as such.
(d) To the extent permitted by applicable law, no Borrower shall assert,
and each Borrower hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement, any Joinder Agreement, any guarantee or any other
agreement or instrument contemplated hereby, any Loan or Letter of Credit or the
use of the proceeds thereof or any of the other transactions contemplated
hereby.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 10.04. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
an Issuing Bank that issues any Letter of Credit), except that (i) neither the
Guarantor nor any Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Guarantor or any Borrower without such
consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section. Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of an Issuing
Bank that issues any Letter of Credit), Participants (to the extent provided in
paragraph (c) of this Section) and, to the extent expressly contemplated hereby,
the Related Parties of the Administrative Agent, the Issuing Banks and each of
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any
Lender may assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it) with the prior written consent (such
consent not to be unreasonably withheld or delayed) of:
(A) the Company, provided that no consent of the Company shall be
required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if a Default has occurred and is continuing, any other
assignee;
(B) the Administrative Agent, provided that no consent of the
67
Administrative Agent shall be required for an assignment of any Commitment
to an assignee that is a Lender with a Commitment immediately prior to
giving effect to such assignment; and
(C) the Issuing Banks.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of
a Lender or an assignment of the entire remaining amount of the assigning
Lender's Commitment or Loans of any Class, the amount of the Commitment or
Loans of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 unless the Company, the Administrative Agent and the Issuing
Banks otherwise consent, provided that no such consent of the Company shall
be required if a Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement; provided that this clause (B) shall not apply to
rights in respect of outstanding Competitive Loans;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
For the purposes of this Section 10.04(b), the term "Approved Fund"
has the following meaning:
"Approved Fund" means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall
68
cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.15, 2.16 and 10.03). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 10.04 shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans and LC Disbursements owing to, each
Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Guarantor, the
Borrowers, the Administrative Agent, the Issuing Banks and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Guarantor, the Borrowers, any Issuing Bank and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b)
of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in
the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(c) (i) Any Lender may, without the consent of the Guarantor, the
Borrowers, the Administrative Agent or the Issuing Banks sell
participations to one or more banks or other entities (a "Participant") in
all or a portion of such Lender's rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing
to it); provided that (A) such Lender's obligations under this Agreement
shall remain unchanged, (B) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations and (C)
the Guarantor, the Borrowers, the Administrative Agent, the Issuing Banks
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification
or waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, modification or waiver described
in the first proviso to Section 10.02(b) that affects such Participant.
Subject to paragraph (c)(ii) of this Section, each Borrower
69
agrees that each Participant shall be entitled to the benefits of Sections
2.14, 2.15 and 2.16 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.17(c) as though
it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.16 than the applicable Lender would
have been entitled to receive with respect to the participation sold
to such Participant, unless the sale of the participation to such
Participant is made with the Company's prior written consent. A
Participant shall not be entitled to the benefits of Section 2.16
unless the Company is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with Section 2.16(e) or 2.16(f), as applicable,
as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to
a Federal Reserve Bank, and this Section shall not apply to any such pledge
or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
SECTION 10.05. Survival. All covenants, agreements, representations and
warranties made by the Guarantor and each Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that any Agent, any Issuing Bank or
any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.14, 2.15, 2.16 and 10.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Commitments or the termination of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Agents constitute
the entire contract among the parties relating to the subject matter hereof and
supersede any and all previous
70
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Agents and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of the Guarantor
or any Borrower against any of and all the obligations of the Guarantor or any
Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law
of the State of New York.
(b) Each of the Guarantor and each Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any
Agent, any Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Guarantor or any Borrower or
its properties in the courts of any jurisdiction.
71
(c) Each of the Guarantor and each Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Each party (including any Borrowing Subsidiary) to this Agreement
irrevocably consents to service of process in the manner provided for notices in
Section 10.01. Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. (a) Each of the Agents, the Issuing Banks
and the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Company
or the Guarantor or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this
72
Section or (ii) becomes available to any Agent, any Issuing Bank or any Lender
on a nonconfidential basis from a source other than a Borrower or the Guarantor.
For the purposes of this Section, "Information" means all information received
from Borrowers or the Guarantor relating to the Borrowers or the Guarantor or
their business, other than any such information that is available to any Agent,
any Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by
the Borrowers or the Guarantor; provided that, in the case of information
received from the Borrowers or the Guarantor after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
(b) Notwithstanding anything herein to the contrary, any party subject to
confidentiality obligations hereunder or otherwise (and any Affiliate thereof
and any employee, representative or other agent of such party or such Affiliate)
may disclose to any and all persons, without limitation of any kind, the tax
treatment and the tax structure of the transactions contemplated hereby and all
materials of any kind (including opinions or other tax analyses) that are or
have been provided to it relating to such tax treatment and tax structure. For
this purpose, the tax treatment of the transactions contemplated hereby is the
purported or claimed U.S. federal tax treatment of such transactions and the tax
structure of such transactions is any fact that may be relevant to understanding
the purported or claimed U.S. federal tax treatment of such transactions.
SECTION 10.13. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 10.14. Power of Attorney. Each Borrowing Subsidiary hereunder
hereby grants to the Company an irrevocable power of attorney to act as its
attorney-in-fact with regard to matters relating to this Agreement and each
other Loan Document, including, without limitation, execution and delivery of
any amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder (including, without limitation,
notices under Article VI) and receipt of service of process in connection
herewith or therewith. Each Borrowing Subsidiary hereby explicitly acknowledges
that each Agent and each Lender has executed
73
and delivered this Agreement and each other Loan Document to which it is a
party, and has performed its obligations under this Agreement and each other
Loan Document to which it is a party, in reliance upon the irrevocable grant of
such power of attorney pursuant to this Article.
SECTION 10.15. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto (including
any Borrowing Subsidiary) agrees, to the fullest extent that it may effectively
do so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures in the relevant jurisdiction the first currency could
be purchased with such other currency on the Business Day immediately preceding
the day on which final judgment is given.
(b) The obligations of the Guarantor or each Borrower in respect of any sum
due to any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the Guarantor or such Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Applicable Creditor against such loss. The obligations of the
Guarantor and each Borrower contained in this Section 10.15 shall survive the
termination of this Agreement and the payment of all other amounts owing
hereunder.
SECTION 10.16. USA Patriot Act. Each Lender that is subject to the Act (as
hereinafter defined) and each of the Agents (for itself and not on behalf of any
Lender) hereby notifies the Borrower that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L 107-56 (signed into law October 26, 2001))
(the "Act"), it is required to obtain, verify and record information that
identifies each of the Borrowers, which information includes the name and
address of each of the Borrowers and other information that will allow such
Lender or the Agents, as applicable, to identify such Borrower in accordance
with the Act.
74
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
UNION OIL COMPANY OF
CALIFORNIA,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Treasurer
UNOCAL CORPORATION,
By
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
JPMORGAN CHASE BANK, individually
and as Administrative Agent
By
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
CITICORP USA, INC., individually
and as syndication agent
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
Title: Attorney-In-Fact
ABN AMRO BANK N.V.,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
BNP PARIBAS,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
ING CAPITAL LLC,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
MIZUHO CORPORATE BANK, LTD.,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title Senior Vice President
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Director
THE BANK OF TOKYO-MITSUBISHI, LTD.
-HOUSTON AGENCY,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
▇▇▇▇▇▇▇'▇ BANK PLC,
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
CALYON AMERICAS,
by
/s/ Philippe Soustra
----------------------------
Name: Philippe Soustra
Title: Executive Vice
President
ROYAL BANK OF SCOTLAND,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NOVA SCOTIA,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Manager
SUMITOMO MITSUI BANKING
CORPORATION,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Senior Vice President
UBS LOAN FINANCE LLC,
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Associate Director
Banking Products
Services, US
by
/s/ Winslowe Ogbourne
----------------------------
Name: Winslowe Ogbourne
Title: Associate Director
Banking Products
Services, US
WACHOVIA BANK, NATIONAL
ASSOCIATION,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BANCA DI ROMA, SAN FRANCISCO
FOREIGN BRANCH,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(#97271)
Title: Vice President
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ (#25050)
Title: Senior Vice President
and Manager
BANK OF AMERICA, N.A.,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
THE BANK OF NEW YORK,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
Acting through its Cayman Islands
Branch,
by
/s/ ▇▇▇▇▇ ▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇
Title: Vice President
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Associate
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
FORTIS CAPITAL CORP.,
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice
President
HSBC BANK USA NATIONAL
ASSOCIATION,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
KBC BANK N.V.
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇ Diels
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ Diels
Title: First Vice President
by
/s/ Stefano Snozzi
----------------------------
Name: Stefano Snozzi
Title: First Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK,
By
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE NORTHERN TRUST COMPANY,
By
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
SANPAOLO IMI S.p.A.
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: General Manager
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
STANDARD CHARTERED BANK,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice
President
TORONTO DOMINION (TEXAS) INC.,
by
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK NA,
by
/s/ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President