EXHIBIT 10.1
1
CREDIT AGREEMENT
Dated as of June 18, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.,
as a Borrower and as Guarantor,
MILLENNIUM INORGANIC CHEMICALS LIMITED,
as a Borrower,
The other BORROWING SUBSIDIARIES
from time to time party hereto
MILLENNIUM CHEMICALS INC.,
as Guarantor,
THE LENDERS PARTY HERETO
THE ISSUING BANKS PARTY HERETO
BANK OF AMERICA, N.A.,
as Syndication Agent
and
THE CHASE MANHATTAN BANK,
as Administrative Agent and Collateral Agent
2
TABLE OF CONTENTS
Page
----
ARTICLE I Definitions
SECTION 1.01. Definitions 6
SECTION 1.02. Accounting Terms 26
SECTION 1.03. Terms Generally. 26
SECTION 1.04. Exchange Rates 26
ARTICLE II The Loans
SECTION 2.01. Commitments 26
SECTION 2.02. Loans. 27
SECTION 2.03. Notice of Borrowings. 27
SECTION 2.04. Swingline Loans. 28
SECTION 2.05. Letters of Credit. 29
SECTION 2.06. Funding of Borrowings 33
SECTION 2.07. Conversions and Continuations 33
SECTION 2.08. Fees 34
SECTION 2.09. Interest on Loans 35
SECTION 2.10. Interest on Overdue Amounts; Alternative Rate of Interest 36
SECTION 2.11. Repayment of Loans; Evidence of Debt 37
SECTION 2.12. Termination and Reduction of Commitments 37
SECTION 2.13. Amortization of Term Loans 38
SECTION 2.14. Prepayment of Loans 38
SECTION 2.15. Reserve Requirements; Change in Circumstances 39
SECTION 2.16. Change in Legality 40
SECTION 2.17. Indemnity 41
SECTION 2.18. Payments Generally 42
SECTION 2.19. Pro Rata Treatment 42
SECTION 2.20. Sharing of Setoffs 43
SECTION 2.21. Taxes 43
SECTION 2.22. Duty to Mitigate; Assignment of Commitments
Under Certain Circumstances 45
SECTION 2.23. Additional Reserve Costs 45
SECTION 2.24. Borrowing Subsidiaries 46
ARTICLE III Representations and Warranties
SECTION 3.01. Organization 46
SECTION 3.02. Authorization 46
SECTION 3.03. Absence of Conflicts 46
SECTION 3.04. Governmental Approvals 46
SECTION 3.05. Enforceability 46
SECTION 3.06. Financial Statements 47
SECTION 3.07. Material Adverse Effect 47
SECTION 3.08. Litigation 47
SECTION 3.09. Compliance with Laws and Agreements 47
3
SECTION 3.10. Federal Reserve Regulations 47
SECTION 3.11. Tax Returns 47
SECTION 3.12. Employee Benefit Plans 48
SECTION 3.13. No Material Misstatements 48
SECTION 3.14. Investment Company Act; Public Utility Holding Company Act 48
SECTION 3.15. Subsidiaries 48
SECTION 3.16. Agreements 48
SECTION 3.17. Environmental and Safety Matters 48
SECTION 3.18. Security Documents 49
SECTION 3.19. Title to Properties 49
SECTION 3.20. Labor Matters 49
SECTION 3.21. Ranking 49
SECTION 3.22. Immunities, Etc. 49
ARTICLE IV Conditions of Lending
SECTION 4.01. All Borrowings 50
SECTION 4.02. First Borrowing 50
SECTION 4.03. Credit Events in Respect of Each Borrowing Subsidiary 52
ARTICLE V Affirmative Covenants
SECTION 5.01. Corporate Existence 53
SECTION 5.02. Businesses and Properties 53
SECTION 5.03. Insurance 53
SECTION 5.04. Taxes 53
SECTION 5.05. Financial Statements, Reports, etc. 53
SECTION 5.06. Litigation and Other Notices 54
SECTION 5.07. ERISA 54
SECTION 5.08. Access to Premises and Records 55
SECTION 5.09. Use of Proceeds and Letters of Credit 55
SECTION 5.10. Covenants Relating to Collateral 55
SECTION 5.11. Compliance with Laws 56
SECTION 5.12. Environmental Compliance 56
ARTICLE VI Negative Covenants
SECTION 6.01. Liens 57
SECTION 6.02. Sale and Leaseback Transactions 58
SECTION 6.03. Subsidiary Indebtedness and Preferred Stock 59
SECTION 6.04. Domestic Account Receivable Securitization Transactions 59
SECTION 6.05. Consolidations, Mergers, Sales of Assets 59
SECTION 6.06. Transactions with Affiliates 60
SECTION 6.07. Limitation on Dividends and Distributions;
Certain Payments of Indebtedness 60
SECTION 6.08. Dividend Restrictions Affecting Subsidiaries 60
SECTION 6.09. Maintenance of Borrowing Subsidiaries as Subsidiaries 61
SECTION 6.10. Equistar Guarantee 61
SECTION 6.11. Leverage Ratio 61
SECTION 6.12. Interest Coverage Ratio 61
ARTICLE VII Events of Default
4
ARTICLE VIII Agents
ARTICLE IX Guarantee
ARTICLE X Miscellaneous
SECTION 10.01. Notices 68
SECTION 10.02. No Waivers; Amendments 69
SECTION 10.03. Governing Law; Submission to Jurisdiction 70
SECTION 10.04. Expenses; Indemnity 71
SECTION 10.05. Survival of Agreements, Representations and Warranties, etc. 72
SECTION 10.06. Successors and Assigns 73
SECTION 10.07. Right of Setoff 75
SECTION 10.08. Severability 75
SECTION 10.09. Cover Page, Table of Contents and Section Headings 75
SECTION 10.10. Counterparts; Effectiveness 75
SECTION 10.11. WAIVER OF JURY TRIAL. 75
SECTION 10.12. Entire Agreement. 76
SECTION 10.13. Conversion of Currencies 76
SECTION 10.14. Release of Liens 76
5
Exhibits and Schedules
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Borrowing Request
Exhibit C-1 Form of Opinion of Counsel--C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Exhibit C-2 Form of Opinion of Counsel--Fried, Frank, Harris,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Exhibit C-3 Form of Local Counsel Opinion
Exhibit D Form of Borrowing Subsidiary Agreement
Exhibit E Form of Borrowing Subsidiary Termination
Exhibit F Form of Perfection Certificate
Exhibit G Form of Indemnity, Subrogation and Contribution Agreement
Exhibit H Form of Security Agreement
Exhibit I Form of Pledge Agreement
Exhibit J Mandatory Costs Rate
Schedule 1.01 Subsidiaries Not Required to Execute Security Agreement
Schedule 2.01 Lenders and Commitments
Schedule 3.15 Subsidiaries
Schedule 10.01 Addresses for Notices
6
CREDIT AGREEMENT dated as of June 18, 2001,
among MILLENNIUM AMERICA INC., a Delaware corporation
("Millennium America"); MILLENNIUM INORGANIC
CHEMICALS LIMITED, a corporation organized under the
laws of England ("MICL"); the other BORROWING
SUBSIDIARIES from time to time party hereto;
MILLENNIUM CHEMICALS INC., a Delaware corporation
("Millennium"), as Guarantor; the lenders from time
to time party hereto, initially consisting of those
listed on Schedule 2.01 hereto (the "Lenders"); the
Issuing Banks from time to time party hereto; BANK OF
AMERICA, N.A., as Syndication Agent; and THE CHASE
MANHATTAN BANK, as administrative agent (in such
capacity, the "Administrative Agent") and as
collateral agent (in such capacity, the "Collateral
Agent").
The Borrowers (such term and each other capitalized term used
but not defined herein having the meaning assigned to it in Article I) have
requested the Lenders to extend credit in the form of (a) Term Loans on the
Effective Date in an aggregate principal amount not in excess of US$125,000,000
and (b) Revolving Loans at any time and from time to time during the Revolving
Availability Period in an aggregate principal amount at any time outstanding not
in excess of US$175,000,000 minus the LC Exposure and the Swingline Exposure at
such time. The Borrowers have also requested the Issuing Banks to issue Letters
of Credit in an aggregate stated amount at any time outstanding that will not
result in the LC Exposure exceeding US$50,000,000. The proceeds of the Term
Loans and Revolving Loans made on the Effective Date, together with the proceeds
of the sale and issuance of the Senior Unsecured Notes, will be used to
refinance existing Indebtedness. The proceeds of Revolving Loans and Swingline
Loans made, and Letters of Credit issued, after the Effective Date will be used
for general corporate purposes. The Lenders are willing to extend such credit to
the Borrowers on the terms and subject to the conditions set forth herein.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. As used in this Agreement, the
capitalized terms in the preamble and the recitals hereto shall have the
meanings therein given them, and the following words and terms shall have the
meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with Article
II.
"Administrative Agent" shall mean Chase, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Fees" shall have the meaning assigned to such
term in Section 2.08(c).
7
"Affiliate" shall mean, with respect to any person, any other
person which directly or indirectly controls, is under common control with or is
controlled by such person. As used in this definition, "control" (including,
with correlative meanings, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"Agents" shall mean the Administrative Agent and the
Collateral Agent.
"Agreement Currency" shall have the meaning assigned to such
term in Section 10.13.
"Alternate Base Rate" or "ABR" shall mean for any day a
fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate
plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly
announced from time to time by Chase as its "prime rate." Such rate is a rate
set by Chase based upon various factors including Chase's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Chase shall take
effect at the opening of business on the day specified in the public
announcement of such change. If for any reason the Administrative Agent shall
have determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Federal Funds Rate for any reason, including,
without limitation, the inability of the Administrative Agent to obtain
sufficient bids in accordance with the terms hereof, the Alternate Base Rate
shall be determined without regard to clause (a) of the first sentence of this
definition until the circumstances giving rise to such inability no longer
exist.
"Amortization Date" shall mean March 31, June 30, September 30
and December 31 in each year, commencing June 30, 2002 (or, if any such day
shall not be a Business Day, the next preceding Business Day).
"Applicable Lending Office" shall mean, with respect to each
Lender, (a) such Lender's Domestic Lending Office in the case of a Loan
denominated in US Dollars or (b) such Lender's (or its Affiliate's) LIBOR
Lending Office in the case of a Loan denominated in a Committed Foreign
Currency.
"Applicable Rate" shall mean, for any day, with respect to any
LIBOR or NIBOR Loan or ABR Loan, or with respect to the Facility Fee payable
hereunder, as the case may be, the applicable rate per annum set forth under the
relevant table below under the caption "LIBOR/NIBOR Margin", "ABR Margin" or
"Facility Fee", as the case may be, based upon the Leverage Ratio as of the most
recent determination date:
Revolving Loan
----------------------------------------------------------------------------------------------------------
Category Leverage Ratio LIBOR/NIBOR ABR Margin Facility Fee
Margin
----------------------------------------------------------------------------------------------------------
1 Less than or equal to 2.5 1.000% 0% .250%
----------------------------------------------------------------------------------------------------------
2 Greater than 2.5 and less 1.200% .200% .300%
than or equal to 3.0
----------------------------------------------------------------------------------------------------------
3 Greater than 3.0 and less 1.350% .350% .400%
than or equal to 3.5
----------------------------------------------------------------------------------------------------------
4 Greater than 3.5 and less 1.500% .500% .500%
than or equal to 4.0
----------------------------------------------------------------------------------------------------------
5 Greater than 4.0 2.000% 1.000% .500%
----------------------------------------------------------------------------------------------------------
8
Term Loan
----------------------------------------------------------------------------------------------------------
Category Leverage Ratio LIBOR/NIBOR ABR Spread
Margin
----------------------------------------------------------------------------------------------------------
1 Less than or equal to 3.0 2.000% 1.000%
----------------------------------------------------------------------------------------------------------
2 Greater than 3.0 and less than or 2.250% 1.250%
equal to 3.5
----------------------------------------------------------------------------------------------------------
3 Greater than 3.5 and less than or 2.500% 1.500%
equal to 4.0
----------------------------------------------------------------------------------------------------------
4 Greater than 4.0 3.000% 2.000%
----------------------------------------------------------------------------------------------------------
For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of
the end of each fiscal quarter of Millennium's fiscal year based upon
Millennium's consolidated financial statements delivered pursuant to Section
5.05(a) or (b) (or, prior to the initial delivery of financial statements
pursuant to Section 5.05(a) or (b), based on Millennium's most recent
consolidated financial statements referred to in Section 3.06) and (ii) each
change in the Applicable Rate resulting from a change in the Leverage Ratio
shall be effective during the period commencing on and including the date of
delivery to the Administrative Agent of such consolidated financial statements
indicating such change and ending on the date immediately preceding the
effective date of the next such change; provided that if Millennium fails to
deliver the consolidated financial statements required to be delivered by it
pursuant to Section 5.05(a) or (b), the Leverage Ratio shall be deemed to be in
Category 5 under the Revolving Loan table and in Category 4 under the Term Loan
table during the period from the expiration of the time for delivery of such
consolidated financial statements until such consolidated financial statements
are delivered.
"Asset Sale" shall mean (a) any sale, transfer or other
disposition (including pursuant to a sale and leaseback transaction but
excluding any sale or transfer to Millennium or any Subsidiary) of any property
or asset of Millennium or any Domestic Subsidiary, other than cash or cash
equivalents and other than sales, transfers or dispositions of inventory and of
worn out or obsolete assets, in each case in the ordinary course of business; or
(b) any issuance and sale by a Domestic Subsidiary of any Equity Interests,
other than to Millennium or a Subsidiary.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee, in the form of Exhibit A.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States of America.
"Borrower" shall mean Millennium America, MICL and any other
Borrowing Subsidiary.
"Borrowing" shall mean (a) Loans of the same Class, Type and
currency, made, converted or continued on the same date and, in the case of
LIBOR Loans or NIBOR Loans, as to which a single Interest Period is in effect,
or (b) a Swingline Loan.
"Borrowing Date" shall mean any Business Day specified in a
notice pursuant to Section 2.03 or 2.04 as a date on which the relevant Borrower
requests Loans to be made hereunder.
"Borrowing Minimum" shall mean (a) in the case of a Borrowing
denominated in US Dollars, US$10,000,000 and (b) in the case of a Borrowing
denominated in any Committed Foreign Currency, the smallest amount of such
Committed Foreign Currency that has a US Dollar Equivalent in excess of
US$10,000,000.
9
"Borrowing Multiple" shall mean (a) in the case of a Borrowing
denominated in US Dollars, US$1,000,000 and (b) in the case of a Borrowing
denominated in any Committed Foreign Currency, 1,000,000 units of such currency.
"Borrowing Request" shall mean a request by the Borrower for a
Borrowing in accordance with Section 2.03 or 2.04, substantially in the form of
Exhibit B.
"Borrowing Subsidiaries" shall mean Millennium America, MICL
or any other Domestic Subsidiary or, with the prior written approval of the
Required Lenders, Foreign Subsidiary designated as a Borrowing Subsidiary by
Millennium pursuant to Section 2.24 that has not ceased to be a Borrowing
Subsidiary as provided in such Section.
"Borrowing Subsidiary Agreement" shall mean a Borrowing
Subsidiary Agreement substantially in the form of Exhibit D.
"Borrowing Subsidiary Termination" shall mean a Borrowing
Subsidiary Termination substantially in the form of Exhibit E.
"Business Day" shall mean any day which is not a Saturday,
Sunday or legal holiday in the State of New York on which banks are open for
business in New York City; provided, however, that (a) when used in connection
with a LIBOR Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in deposits in the applicable currency in the
London interbank market, (b) when used in connection with a Loan denominated in
Euro, the term "Business Day" shall also exclude any day on which the TARGET
payment system is not open for the settlement of payments in Euro and (c) when
used in connection with a NIBOR Loan, the term "Business Day" shall also exclude
any day on which the lending offices of the Lender which is the Administrative
Agent where its Committed Foreign Currency and exchange operations and
Eurodollar funding operations are customarily conducted are closed.
"Calculation Date" shall mean (a) the date hereof and the last
Business Day of each calendar quarter and (b) at any time when the aggregate
amount of the Revolving Exposures exceeds 85% of the aggregate Revolving
Commitments, the last Business Day of each two-calendar week period.
"Capitalized Lease Obligations" of any person shall mean
obligations of such person and its consolidated subsidiaries to pay rent or
other amounts under any lease of (or other arrangement conveying the right to
use) real and/or personal property, which obligations are accounted for as a
capital lease on the consolidated balance sheet of such person; provided that
for purposes of this definition, Capitalized Lease Obligations shall be deemed
not to include the obligations arising under the Energy Equipment Leasing LLC
Equipment Lease dated June 2, 1999, between Energy Equipment Leasing LLC and
Millennium Inorganic Chemicals Inc. for equipment located at the Trigen
Cogeneration facility at Ashtabula, Ohio in an amount not to exceed $30,000,000.
"Cash Management Subsidiary" shall mean a Subsidiary engaged
solely in borrowing, lending and investing in Millennium and its Subsidiaries
and short-term investment activities in connection with Millennium and its
Subsidiaries and that holds no material assets other than cash, cash equivalents
and intercompany receivables.
"Change in Law" shall mean (a) the adoption of any law, rule
or regulation after the date of this Agreement, (b) any change in any law, rule
or regulation or in the interpretation or application thereof after the date of
this Agreement or (c) compliance by any Lender or any Issuing Bank with any
request, guideline or directive (whether or not having the force of law), in
each case of any Governmental Authority made or issued after the date of this
Agreement.
10
"Change of Control" shall mean either of the following events:
(a) any person or group (within the meaning of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission thereunder as in
effect on the date hereof) other than Millennium, any trustee or other fiduciary
holding securities under any employee benefit plan of Millennium or any company
owned, directly or indirectly, by the stockholders of Millennium in
substantially the same proportions as their ownership of common stock of
Millennium shall become the beneficial owner, directly or indirectly, of
securities of Millennium representing 25% or more of the aggregate ordinary
voting power of Millennium's then outstanding capital stock; (b) a majority of
the seats (other than vacant seats) on the board of directors of Millennium
shall be occupied by persons who were neither (i) nominated by the board of
directors of Millennium nor (ii) appointed by directors so nominated; or (c) a
"change in control" or similar event, however denominated, shall occur under any
agreement, instrument or certificate evidencing or governing Indebtedness or
preferred stock of Millennium or any Subsidiary in an aggregate principal or
stated amount in excess of $50,000,000 and as a result thereof the holders of
any such Indebtedness or preferred stock, or a representative acting on their
behalf, shall have the right to accelerate or require the prepayment, redemption
or repurchase of (or to require Millennium or any Subsidiary to offer to prepay,
redeem or repurchase) such Indebtedness or preferred stock.
"Chase" shall mean The Chase Manhattan Bank, and its
successors.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Term Loans or Swingline Loans and, when used in reference to
any Commitment, refers to whether such Commitment is a Revolving Commitment or
Term Loan Commitment.
"Closing Date" shall mean the date of this Agreement.
"Collateral" shall mean any and all "Collateral", as defined
in any applicable Security Document.
"Collateral Agent" shall mean Chase, in its capacity as
collateral agent for the Lenders.
"Collateral Requirement" shall mean, at any time, that the
following requirements shall be satisfied as of such time:
(a) one or more Pledge Agreements (or supplements thereto)
shall have been duly executed and delivered by Millennium and by each
Domestic Subsidiary existing at such time and directly owning any
outstanding Equity Interests in or any Indebtedness of Millennium or
any other Subsidiary (other than Equity Interests in DR Insurance
Company or an Excluded Subsidiary), and there shall have been duly and
validly pledged to the Collateral Agent thereunder, for the ratable
benefit of the Secured Parties, (A) all the outstanding Equity
Interests (other than Equity Interests in DR Insurance Company or
Equity Interests in any Excluded Subsidiary or in the Equity Interests
in Equistar, which are pledged hereunder only to the extent provided in
clause (B) below or in the Equity Interests in the Subsidiary referred
to in clause (C) below, which are pledged hereunder only to the extent
provided in clause (C) below) owned directly by Millennium or any
Domestic Subsidiary, including all the outstanding capital stock of
Millennium America, (B) all the outstanding Equity Interests in
Equistar owned directly or indirectly by Millennium or any Subsidiary
(which pledge shall be limited to the right to receive distributions
made by Equistar), (C) all the outstanding Equity Interests in La Porte
owned directly or indirectly by Millennium or any Subsidiary (which
pledge shall be limited to the right to receive distributions made by
La Porte), (D) 65% of the aggregate outstanding Equity Interests (or
such lesser percentage as shall be owned by Millennium
11
and the Domestic Subsidiaries) in each Foreign Subsidiary (other than a
foreign Excluded Subsidiary) owned in whole or in part directly by
Millennium or any Domestic Subsidiary and (E) all Indebtedness that is
owed by Millennium or any Subsidiary to Millennium or any Domestic
Subsidiary; and any certificates, promissory notes or other instruments
representing the Equity Interests or Indebtedness pledged or subjected
to a charge under the Pledge Agreements, accompanied by undated stock
powers or other instruments of transfer endorsed in blank, shall be in
the actual possession of the Collateral Agent and all other steps
required under applicable law or requested by the Collateral Agent to
ensure that the Pledge Agreements create valid, first priority,
perfected Liens on all the Collateral subject thereto shall have been
taken;
(b) the Security Agreement (or a supplement thereto) shall
have been duly executed and delivered by Millennium and each Domestic
Subsidiary (other than any Excluded Subsidiary and other than the
Subsidiaries listed in Schedule 1.01) existing at such time and there
shall have been subjected to security interests thereunder securing the
Obligations all the Collateral (as defined therein);
(c) the Indemnity, Subrogation and Contribution Agreement
shall have been duly executed and delivered by Millennium, Millennium
America, each Borrowing Subsidiary and each Domestic Subsidiary that
shall have executed a Pledge Agreement or the Security Agreement; and
(d) all documents and instruments, including UCC financing
statements, required by law or reasonably requested by the Collateral
Agent to be filed, registered or recorded to create the security
interests intended to be created by the Security Documents or to
perfect such security interests shall have been filed, registered or
recorded or arrangements satisfactory to the Collateral Agent for the
filing, registration or recording thereof shall have been made.
The foregoing definition shall not require the creation or perfection of pledges
of or security interests in particular assets or the obtaining of legal opinions
or other documents with respect thereto if and for so long as, in the judgment
of the Collateral Agent, the cost of creating or perfecting such pledges or
security interests or obtaining such legal opinions or other documents shall be
excessive in view of the benefits to be obtained by the Lenders therefrom. The
Collateral Agent may grant extensions of time for the perfection of pledges or
security interests in particular assets or the obtaining of legal opinions or
other documents with respect thereto where it determines that perfection cannot
be accomplished or such opinions or documents cannot be provided without undue
effort or expense by the time or times at which it would otherwise be required
by this Agreement.
"Commitment" shall mean a Revolving Commitment or a Term
Commitment (as the context requires).
"Code" shall mean the Internal Revenue Code of 1986, as the
same may be amended from time to time.
"Committed Foreign Currency" shall mean Sterling, Euros and
any other currency approved in writing by the Administrative Agent and each
Lender which, at the time of such approval, is freely transferable and
convertible into US Dollars in the London market and for which, at the time of
such approval, LIBO Rates can be determined as provided in the definition of
"LIBO Rate".
"Consolidated Subsidiary" shall mean, at any date, any
Subsidiary or other entity the accounts of which, in accordance with GAAP, would
be consolidated with those of Millennium in its consolidated financial
statements as of such date.
12
"Credit Event" shall mean a Borrowing (including any Swingline
Borrowing or any Borrowing resulting from the conversion or continuation of
Loans pursuant to Section 2.07) or an issuance, amendment, renewal or extension
of a Letter of Credit.
"Default" shall mean any event or condition which with the
giving of notice or lapse of time or both would constitute an Event of Default.
"Designated Letter of Credit" shall mean, collectively, one or
more letters of credit made available to Millennium or any Subsidiary by one or
more financial institutions (which may include Lenders) under one or more
separate letter of credit facilities; provided that (a) any such letter of
credit shall be a "Designated Letter of Credit" only if (i) such letter of
credit shall have been designated as such in a notice delivered by Millennium to
the Administrative Agent together with a copy of the executed definitive
documentation related to such letter of credit and (ii) the aggregate face
amount of and unreimbursed drawings under such letter of credit and any other
letter of credit outstanding or any drawing under which remains unreimbursed at
the time of such designation and previously so designated shall not exceed
US$50,000,000, and (b) if the amount of any such letter of credit shall be
increased after it shall have been designated pursuant to clause (a), the amount
of such increase shall be deemed a new letter of credit and shall be a
Designated Letter of Credit only if the requirements of clause (a) shall be
satisfied as to it.
"Designated Letter of Credit Obligations" shall mean, at any
time, the sum of (a) the aggregate undrawn amount of all Designated Letters of
Credit outstanding at such time plus (b) the aggregate amount of all
disbursements made by the financial institutions issuing Designated Letters of
Credit that have not yet been reimbursed by or on behalf of Millennium or
Millennium America, as the case may be.
"Domestic Lending Office" shall mean, with respect to any
Lender, the office of such Lender (or an Affiliate of such Lender) specified as
its "Domestic Lending Office" on Schedule 2.01 or, as to any person who becomes
a Lender after the Closing Date, in the Assignment and Acceptance executed by
such person, or such other office of such Lender (or an Affiliate of such
Lender) as such Lender may hereafter designate from time to time as its
"Domestic Lending Office" by notice to Millennium and the Administrative Agent.
"Domestic Subsidiary" shall mean a Subsidiary incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"EBITDA" shall mean, with respect to Millennium and its
Subsidiaries for any period, the sum of (a) Operating Income, (b) amortization,
depreciation and depletion and (c) non-cash compensation expense (including
deferred compensation expense), all determined on a consolidated basis, and (d)
solely for purposes of determining compliance with Sections 6.11 and 6.12, but
not for any other purpose, up to $30,000,000 of nonrecurring charges booked
after the date hereof in connection with plant closures and severance expenses.
"Effective Date" shall mean the date on which the conditions
specified in Section 4.02 are satisfied (or waived in accordance with Section
10.02).
"EMU Legislation" shall mean the legislative measures of the
European Union for the introduction of, changeover to or operation of the Euro
in one or more member states.
"Environmental and Safety Laws" shall have the meaning
assigned to such term in Section 3.17.
13
"Equistar" shall mean Equistar Chemicals, LP, a Delaware
limited partnership of which Millennium LP is a limited partner and Millennium
GP is a general partner.
"Equistar Credit Agreement" shall mean the Credit Agreement
dated as of November 25, 1997, as Amended and Restated as of February 5, 1999,
and as amended as of March 27, 2001, and as further amended from time to time,
among Equistar; Millennium America, as Guarantor; the lenders party thereto;
Bank of America, N.A., as servicing agent, documentation agent and
administrative agent; and The Chase Manhattan Bank, as syndication agent and
administrative agent.
"Equistar Guarantee" shall mean, collectively, (a) the
guarantee of collection by Millennium America or by its subsidiaries of the
principal amount of Indebtedness under the Equistar Credit Agreement and other
amounts, including interest, that have accrued with respect thereto and (b) any
guarantee of collection, on terms (including the conditions required to be
satisfied before any claim may be made by the beneficiaries thereof) not less
favorable to Millennium America or its subsidiaries than those of the guarantee
referred to in the preceding clause (a), of the principal amount of any
Indebtedness refinancing or replacing the Indebtedness referred to in such
clause (a) and other amounts, including interest, that have accrued with respect
thereto; provided that the aggregate outstanding principal amount of all
Indebtedness guaranteed under the Equistar Guarantee shall in no event exceed
$750,000,000.
"Equistar Limited Partnership Agreement" shall mean the
Amended and Restated Limited Partnership Agreement dated as of May 15, 1998, as
amended by the First Amendment dated as of June 30, 1998, and the Second
Amendment dated February 16, 1999, by and among Lyondell GP, Millennium GP,
Lyondell LP, Millennium LP Occidental GP, Occidental LP1, Occidental LP2 and New
Oxy GP, and as further amended, supplemented or otherwise modified from time to
time.
"Equistar Parent Agreement" shall have the meaning assigned to
it in the Equistar Limited Partnership Agreement.
"Equity Interests" shall mean any shares of capital stock,
partnership interests, membership interests in a limited liability company,
beneficial interests in a trust or other equity ownership interests in a person,
and any warrants, options or other rights to acquire any such equity ownership
interests.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated) that, together with any Loan Party, is treated as a single
employer under Section 414 of the Code.
"Euro" or "E" shall mean the single currency of the European
Union as constituted by the Treaty on European Union and as referred to in the
EMU Legislation.
"Event of Default" shall have the meaning specified in Article
VII.
"Exchange Rate" shall mean, with respect to any Committed
Foreign Currency on a particular date, the rate at which such Committed Foreign
Currency may be exchanged into US Dollars, as set forth on such date on the
applicable Reuters currency page. In the event that such rate does not appear on
any such Reuters currency page, the Exchange Rate with respect to such Committed
Foreign Currency shall be determined by reference to such other publicly
available service for displaying exchange rates as may be agreed upon by the
Administrative Agent and Millennium, or, in the absence of such agreement, such
Exchange Rate shall instead be the arithmetic average of the spot rates of
exchange of the Lender which is the Administrative
14
Agent in the market where its Committed Foreign Currency exchange operations in
respect of such Committed Foreign Currency are then being conducted, at or about
10:00 A.M., local time, at such date for the purchase of US Dollars with such
Committed Foreign Currency for delivery two Business Days later; provided,
however, that if at the time of any such determination, for any reason, no such
spot rate is being quoted, the Administrative Agent may use any reasonable
method it deems appropriate to determine such rate, and such determination shall
be conclusive absent manifest error.
"Excluded Subsidiary" shall mean any Subsidiaries that do not,
individually or in the aggregate, (a) own any assets or engage in any operations
(other than insignificant assets and operations) or (b) own any Equity Interests
in or Indebtedness of Millennium or any other Subsidiary (other than Equity
Interests in another Excluded Subsidiary).
"Excluded Taxes" shall mean, with respect to the
Administrative 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
hereunder, (a) income or franchise taxes imposed on (or measured by) its net
income by the United States of America (or any political subdivision thereof),
or by the jurisdiction (or any political subdivision thereof) under the laws of
which such recipient is organized or, in the case of any Lender or Issuing Bank,
in which it has an office or in which it is engaged in a trade or business
(other than solely the business of performing its obligations under this
Agreement; (b) any branch profits taxes imposed by the United States of America
(or any political subdivision thereof) or any similar tax imposed by any other
jurisdiction (or any political subdivision thereof) described in clause (a)
above; (c) in the case of a Lender (other than a purchaser of a participation
pursuant to Section 2.21 or an assignee pursuant to a request by a Borrower
under Section 2.22), any withholding tax that is imposed (i) by the United
States of America (or any political subdivision thereof) on payments by any
Borrower organized in such jurisdiction to such Lender's Applicable Lending
Office or (ii) in the case of a Revolving Lender, by the United Kingdom (or any
political subdivision therein) on payments by any Borrower organized in such
jurisdiction to such Lender's Applicable Lending Office, in either case to the
extent such tax is in effect and would apply as of the date such Lender becomes
a party to this Agreement or relates to payments received by a new Applicable
Lending Office designated by such Lender and is in effect and would apply at the
time such Applicable Lending Office is designated, except to the extent that
such Lender (or its assignor, if any) shall have been entitled, at the time it
designated such new Applicable Lending Office, to receive additional amounts
with respect to any withholding tax pursuant to Section 2.21(a); and (d) any
withholding tax that is attributable to such Lender's failure to comply with
Section 2.21(e).
"Existing Credit Agreement" shall mean the Credit Agreement
dated as of July 26, 1996, as amended, among Millennium, Millennium America,
certain borrowing subsidiaries, certain lenders, The Chase Manhattan Bank, as
documentation agent, and Bank of America, N.A., as administrative agent.
"Facility Fee" shall have the meaning assigned to such term in
Section 2.08(a).
"Federal Funds Rate" shall mean, for any day, a fluctuating
interest rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Fee Percentage" shall mean the percentage set forth in the
definition of "Applicable Rate" appearing under the "Facility Fee" column.
15
"Fees" shall mean the Facility Fee, the LC Participation Fee,
the Issuing Bank Fees and the Administrative Fees.
"Financial Officer" of any person shall mean the chief
financial officer, the treasurer or the principal accounting officer of such
person.
"Fiscal Quarter" shall mean any fiscal quarter of Millennium.
"Fiscal Year" shall mean any fiscal year of Millennium.
"Foreign Subsidiary" shall mean any Subsidiary that is
organized under the laws of a jurisdiction other than the United States of
America or any State thereof or the District of Columbia.
"GAAP" shall mean generally accepted accounting principles in
the United States of America applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantee" of or by any person shall mean any obligation,
contingent or otherwise, of such person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (c) to maintain working capital, equity capital
or other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness; provided, however, that
the term "Guarantee", when used with respect to Millennium America, Millennium
or any Subsidiary, shall not include any of the foregoing guarantee obligations
with respect to Indebtedness of any person (i) to the extent of any reserves
maintained with respect thereto on the books of Millennium America, Millennium
or any Subsidiary in accordance with GAAP or (ii) in the event such person shall
have been a Subsidiary or an Affiliate of Millennium America, Millennium or any
Subsidiary at the time any such guarantee obligation was incurred, to the extent
of any Offsetting Guarantee/Indemnity of any person reasonably expected to be
able to perform its obligations thereunder in effect with respect to such
guarantee obligation; and provided, further, that the term "Guarantee", when
used with respect to Millennium or any of its Subsidiaries, shall exclude
guarantees of up to $12,000,000 in aggregate principal amount of loans made by
third party lenders to officers and directors of Millennium or any of its
Subsidiaries to enable them to acquire common stock of Millennium or any of its
Subsidiaries pursuant to an employee stock ownership plan.
"Guarantors" shall mean Millennium and Millennium America.
"Hedging Agreement" shall mean any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest rate hedging or currency exchange rate hedging or
commodity price hedging arrangement.
"Illegality" shall have the meaning assigned to such term in
Section 2.16(a).
"Indebtedness" of any person shall mean, with respect to any
person, without duplication, (a) all obligations of such person for borrowed
money or with respect to deposits or advances of any kind (including repurchase
obligations), (b) all obligations of such person
16
evidenced by bonds, debentures, notes or similar instruments or letters of
credit in support of bonds, notes, debentures or similar instruments, (c) all
obligations of such person under any conditional sale or other title retention
agreement relating to property purchased by such person, (d) all obligations of
such person issued or assumed as the deferred purchase price of property or
services (other than accounts payable to providers of goods or services incurred
in the ordinary course of business and paid when due), (e) all Capitalized Lease
Obligations of such person, (f) all obligations of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property or assets owned or acquired by
such person, whether or not the obligations secured thereby have been assumed
and (g) all Guarantees of such person, excluding, at any time when Millennium
shall directly or indirectly own the interest owned by it on the date hereof in
Equistar, the Equistar Guarantee (it being agreed that Millennium America may
cause any of its subsidiaries, other than, so long as the Indenture remains in
effect and such assumption would result in material adverse consequences to the
Lenders or Millennium America, any Restricted Subsidiary as defined in the
Indenture, to assume its obligations under the Equistar Guarantee).
"Indemnified Taxes" shall mean Taxes other than Excluded
Taxes.
"Indemnity, Subrogation and Contribution Agreement" shall mean
the Indemnity, Subrogation and Contribution Agreement substantially in the form
of Exhibit G hereto.
"Indenture" shall mean the indenture for Millennium America's
7% Senior Notes due November 15, 2006 and 7-5/8% Senior Debentures due November
15, 2026.
"Indenture Basket" shall mean, at any date, an amount equal to
(a) 15% of Consolidated Net Tangible Assets minus (b) the sum of (i) the
aggregate outstanding principal amount of the Term Loans as of such date and
(ii) the aggregate amount of (A) all other Debt of Millennium America and
Restricted Subsidiaries secured by Liens on Restricted Properties, (B) all Sale
and Lease-Back Transactions of Millennium America and Restricted Subsidiaries
and (C) all other Funded Debt of Restricted Subsidiaries that have been incurred
in reliance on the baskets set forth in Sections 1007, 1008 and 1009 of the
Indenture, in each case determined as provided in the Indenture as of such date.
Capitalized terms used in this definition and not defined elsewhere in this
Agreement are used with the meanings assigned to them in the Indenture.
"Interest Coverage Ratio" shall mean the ratio of EBITDA to
Net Interest Expense for Millennium and its Consolidated Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"Interest Payment Date" shall mean (a) with respect to any
Loan (other than a Swingline Loan), the last day of each Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
LIBOR Loan or a NIBOR Loan with an Interest Period of more than three months'
duration, each day that would have been an Interest Payment Date had successive
Interest Periods of three months' duration been applicable to such Loan and, in
addition, the date of any repayment or prepayment of such Loan or continuation
or conversion of such Loan with or to a Loan of a different Type, and (b) with
respect to any Swingline Loan, the day that such Loan is required to be repaid.
"Interest Period" shall mean (a) as to any LIBOR Borrowing,
the period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months thereafter (or such other periods, including 9 and 12 months,
as the applicable Borrower and all the Lenders may agree at the time of the
Borrowing), as the applicable Borrower may elect, (b) as to any NIBOR Borrowing,
the period commencing
17
on the date of such Borrowing or on the last day of the immediately preceding
Interest Period applicable to such Borrowing, as the case may be, and ending (1)
on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3, or 6
months thereafter as the applicable Borrower may elect or (2) as determined by
the Administrative Agent, on the corresponding day of the week that is within
one week or two weeks thereafter, as the applicable Borrower may elect and (c)
as to any ABR Borrowing, the period commencing on the date of such Borrowing or
on the last day of the immediately preceding Interest Period applicable to such
Borrowing, as the case may be, and ending on the next succeeding March 31, June
30, September 30 or December 31 or, if earlier, the date of prepayment or
conversion of such Borrowing; provided, however, that (i) if any Interest Period
would end on a day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of LIBOR Loans
or NIBOR Loans 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, (ii) no Interest Period with respect to any Loan shall
end later than the Revolving Maturity Date or the Term Maturity Date, as
applicable, and (iii) interest shall accrue from and including the first day of
an Interest Period to but excluding the last day of such Interest Period.
"Issuing Bank" shall mean, at any time, Chase and each other
Lender that shall have become an Issuing Bank hereunder as provided in Section
2.05(j), each in its capacity as the issuer of any Letter of Credit hereunder.
Each 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" shall have the meaning assigned to
such term in Section 2.05(j).
"Issuing Bank Fee" shall have the meaning assigned to such
term in Section 2.08(b).
"Judgment Currency" shall have the meaning assigned to such
term in Section 10.13.
"LAG Methanol" shall mean LAG Methanol Corporation, a Delaware
corporation that serves as a general partner and a limited partner of La Porte.
"La Porte" shall mean the La Porte Methanol Company, L.P., a
Delaware limited partnership of which Millennium Methanol GP Inc. is a general
partner and Millennium Methanol LP Inc. is a limited partner.
"La Porte Methanol Limited Partnership Agreement" shall mean
the Amended and Restated Limited Partnership Agreement dated January 1999, by
and between Millennium Methanol LP Inc., Millennium Methanol GP Inc. and LAG
Methanol, as further amended, supplemented or otherwise modified from time to
time.
"La Porte Methanol Parent Agreement" shall have the meaning
assigned to it in the La Porte Methanol Limited Partnership Agreement.
"LC Commitment" shall mean, as to each Issuing Bank, the
commitment of such Issuing Bank to issue Letters of Credit pursuant to Section
2.05.
"LC Disbursement" shall mean a payment made by any Issuing
Bank pursuant to a Letter of Credit.
18
"LC Exposure" shall mean, 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 applicable Borrowers at such time. The LC
Exposure of any Revolving Lender at any time shall be its Revolving Percentage
of the total LC Exposure at such time.
"LC Participation Fee" shall have the meaning assigned to such
term in Section 2.08(b).
"Lender Affiliate" means, (a) with respect to any Lender, (i)
an Affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a Lender or an
Affiliate of such Lender and (b) with respect to any Lender that is a fund that
invests in bank loans and similar extensions of credit, any other fund that
invests in bank loans and similar extensions of credit and is managed by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Lenders" shall mean 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 ceases to be a party hereto
pursuant to an Assignment and Acceptance. Unless the context otherwise requires,
the term "Lenders" includes the Swingline Lender.
"Letter of Credit" shall mean a letter of credit issued by the
Issuing Bank for the account of a Borrower pursuant to Section 2.05.
"Leverage Ratio" shall mean, at any time, the ratio of (a)
Total Indebtedness at such time to (b) EBITDA for the most recently ended period
of four fiscal quarters for which financial statements have been delivered
pursuant to Section 5.05(a) or (b) (or, prior to the delivery of the first such
financial statements, for the period of four fiscal quarters ended March 31,
2001), all as determined on a consolidated basis in accordance with GAAP.
"LIBO Rate" shall mean, with respect to any Borrowing
comprised of LIBOR Loans for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next higher 1/16th of 1%) equal to the
rate at which deposits in the currency of such Borrowing approximately equal in
principal amount to the LIBOR Loan of the Lender which is the Administrative
Agent and for a maturity comparable to the applicable Interest Period are
offered in immediately available funds to such Lender in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIBOR Borrowing" shall mean a Borrowing comprised of LIBOR
Loans.
"LIBOR Lending Office" shall mean, with respect to each
Lender, the office of such Lender (or an Affiliate of such Lender) which such
Lender has designated as its "LIBOR Lending Office" on Schedule 2.01 or, as to
any person who becomes a Lender after the Closing Date, in the Assignment and
Acceptance executed by such person, or such other office of such Lender (or an
Affiliate of such Lender) as such Lender may hereafter designate from time to
time as its "LIBOR Lending Office" by notice to Millennium and the
Administrative Agent.
"LIBOR Loan" shall mean any Revolving Loan bearing interest at
a rate determined by reference to the LIBO Rate in accordance with the
provisions of Article II.
"Lien" shall mean, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement relating
to
19
such asset or (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan" shall mean a Swingline Loan, Revolving Loan or a Term
Loan, whether made as a LIBOR Loan, a NIBOR Loan or an ABR Loan, as permitted
hereby.
"Loan Documents" shall mean (a) this Agreement, (b) each
Borrowing Subsidiary Agreement, (c) the Security Agreement, (d) each Pledge
Agreement, (e) the Indemnity, Subrogation and Contribution Agreement, (f) each
amendment, supplement, modification, consent or waiver of, to or in respect of
any of the foregoing and (g) each promissory note issued to evidence Loans made
hereunder.
"Loan Parties" shall mean the Borrowers, Millennium and each
Subsidiary that is a party to any Loan Document.
"Loans" shall mean the loans made by the Lenders to the
Borrowers pursuant to this Agreement.
"Lyondell" shall mean Lyondell Chemical Company, a Delaware
corporation and a partner in Equistar.
"Lyondell GP" shall mean Lyondell Chemical G.P. Inc., the
wholly owned subsidiary of Lyondell that serves as one of the general partners
of Equistar.
"Lyondell LP" shall mean Lyondell Petrochemical L.P. Inc., the
wholly owned subsidiary of Lyondell that serves as one of the limited partners
of Equistar.
"Margin Stock" shall have the meaning given such term under
Regulation U.
"Material Adverse Effect" shall mean an event or condition
(including, without limitation, any event or condition relating to Equistar
known to the officers of Millennium America or Millennium) that has resulted or
could reasonably be expected to result in (a) a materially adverse change in the
business, assets, operations or financial condition of Millennium and its
Subsidiaries (including Millennium's Equity Interest in Equistar) taken as a
whole, (b) material impairment of the ability of Millennium, Millennium America
and the other Borrowing Subsidiaries taken as a whole to perform their
obligations under any Loan Document or (c) material impairment of the rights of
or benefits available to the Lenders or the Administrative Agent under any Loan
Document.
"Material Subsidiary" shall mean (a) each of Millennium
Inorganic Chemicals Inc., Millennium Inorganic Chemicals Limited, Millennium
Petrochemicals Inc. and Millennium Specialty Chemicals Inc., (b) each other
Subsidiary other than Subsidiaries that, individually or in the aggregate, do
not account for more than 10% of the assets, or more than 12% of the revenues
for the four fiscal quarters most recently ended, of Millennium and its
Subsidiaries on a consolidated basis, (c) any Subsidiary that directly or
indirectly owns a Material Subsidiary and (d) each Borrowing Subsidiary;
provided that the term "Material Subsidiary" shall exclude any Cash Management
Subsidiary.
"MICL" shall mean Millennium Inorganic Chemicals Limited, a
corporation organized under the laws of England and an indirect, wholly owned
subsidiary of Millennium.
"Millennium" shall mean Millennium Chemicals Inc., a Delaware
corporation.
"Millennium America" shall mean Millennium America Inc., a
Delaware corporation and an indirect, wholly owned subsidiary of Millennium.
20
"Millennium GP" shall mean Millennium Petrochemicals GP LLC,
the indirect, wholly owned Subsidiary of Millennium America that serves as one
of the general partners of Equistar.
"Millennium LP" shall mean Millennium Petrochemicals LP LLC,
the indirect, wholly owned Subsidiary of Millennium America that serves as one
of the limited partners of Equistar.
"Millennium Methanol GP Inc." shall mean Millennium Methanol
GP Inc., a Delaware corporation and the indirect, wholly owned Subsidiary of
Millennium America that serves as one of the general partners of La Porte.
"Millennium Methanol LP Inc." shall mean Millennium Methanol
LP Inc., a Delaware corporation and the indirect, wholly owned Subsidiary of
Millennium America that serves as one of the limited partners of La Porte.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which any Loan Party or ERISA
Affiliate (other than one considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 414 of the Code) is making or accruing an
obligation to make contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.
"Net Cash Proceeds" shall mean, with respect to any Asset
Sale, the cash proceeds (including cash proceeds subsequently received (as and
when received) in respect of noncash consideration initially received) received
in connection therewith, net of, without duplication, (i) selling expenses
(including reasonable broker's fees or commissions, legal fees and other
professional fees and expenses, transfer and similar taxes and Millennium's good
faith estimate of income taxes paid or payable on gains recognized or to be
recognized by reason of such Asset Sale), (ii) amounts provided as a reserve, in
accordance with GAAP, against any liabilities under any indemnification
obligations or purchase price adjustment or taxes or other related liabilities
associated with such Asset Sale (provided; that, to the extent and at the time
any such amounts are released from such reserve, the amount (if any) by which
the reserved amount in respect of such Asset Sale exceeds the actual liability
payable shall constitute Net Cash Proceeds), (iii) the principal amount, premium
or penalty, if any, interest and other amounts on any Indebtedness which is
secured by the asset sold in such Asset Sale and which is required to be repaid
with such proceeds (other than any such Indebtedness assumed by the purchaser of
such asset) and (iv) in the case of any Asset Sale involving the assets of or
equity Interests in any non-wholly owned Subsidiary, any amount of such cash
proceeds that must be paid to any holder (other than Millennium or another
Subsidiary) of Equity Interests in such Subsidiary; provided, however, that, if
(x) Millennium shall deliver a certificate of a Financial Officer to the
Administrative Agent at the time of receipt thereof setting forth such
Borrower's intent to reinvest up to US$2,500,000 of such proceeds in capital
assets of a kind then used or usable in the business of such Borrower and its
Subsidiaries within 180 days of receipt of such proceeds and (y) no Default or
Event of Default shall have occurred and shall be continuing, such proceeds
shall not constitute Net Cash Proceeds except to the extent not so used by the
end of such 180-day period, at which time such proceeds shall be deemed to be
Net Cash Proceeds.
"New Oxy GP" shall mean Occidental Petrochemical Partner GP,
Inc., a Delaware corporation.
"Net Interest Expense" shall mean, with respect to Millennium
and its Subsidiaries for any period, (a) the interest expense of Millennium and
its Subsidiaries, including, without limitation, (i) the amortization of debt
discounts, (ii) the amortization of all fees (including, without limitation,
fees with respect to interest rate protection agreements) payable in connection
with the incurrence of Indebtedness to the extent included in interest expense
and (iii)
21
the portion of any Capitalized Lease Obligation allocable to interest expense,
less (b) (i) the amortization of any discounts relating to retiree health
benefits of Millennium and its Subsidiaries for such period and (ii) the amount
of interest income of Millennium and its Subsidiaries for such period, in each
case determined on a consolidated basis. For purposes of the foregoing, interest
expense shall be determined after giving effect to any net payments made or
received by Millennium and its Subsidiaries with respect to interest rate
protection agreements entered into as a hedge against interest rate exposure.
"NIBO Rate" shall mean, with respect to any Borrowing
comprised of NIBOR Loans for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next higher 1/16th of 1%) equal to the
interest rate at which US Dollar deposits approximately equal in principal
amount to the NIBOR Loan of the Lender which is the Administrative Agent for
which the NIBO Rate is being determined and for a maturity equal to the
applicable Interest Period are offered in immediately available funds to such
Lender at the Eurodollar lending offices where its Committed Foreign Currency
and exchange operations and Eurodollar funding operations are customarily
conducted in the international interbank market at approximately 10:00 a.m., New
York City time, two Business Days prior to the commencement of such Interest
Period.
"NIBOR Borrowing" shall mean a Borrowing comprised of NIBOR
Loans.
"NIBOR Loan" shall mean any Loan bearing interest at a rate
determined by reference to the NIBO Rate in accordance with the provisions of
Article II.
"Obligations" shall mean the obligations of the Borrowers and
the Guarantors under this Agreement or any other Loan Document (as the same may
hereafter be amended, restated, extended, supplemented or otherwise modified
from time to time) with respect to the due and punctual payment, whether at
maturity, by acceleration or otherwise, of (i) the principal amount of and
interest on the Loans (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), (ii) each payment required to
be made by the Borrowers under this Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements and obligations to provide cash collateral, (iii) all other
monetary obligations of the Borrowers and the Guarantors, whether for fees,
costs, expenses, indemnification or otherwise (including monetary obligations
incurred during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding) and (iv) the due and punctual payment of all obligations of the
Borrowers under each Hedging Agreement (A) entered into prior to the date hereof
with a counterparty that is a Lender (or an Affiliate of a Lender) on the date
hereof or (B) entered into on or after the date hereof with a counterparty that
is a Lender (or an Affiliate of a Lender) at the time such Hedging Agreement is
entered into.
"Occidental GP" shall mean PDG Chemical Inc., a Delaware
corporation.
"Occidental LP1" shall mean Occidental Petrochemical Partner
1, Inc., a Delaware corporation.
"Occidental LP2" shall mean Occidental Petrochemical Partner
2, Inc., a Delaware corporation.
"Offsetting Guarantee/Indemnity" shall mean any agreement by
any person to guarantee, indemnify, reimburse or otherwise hold harmless
Millennium America, Millennium or any Subsidiary, as the case may be, against
any liability incurred in connection with any assurance provided by Millennium
America, Millennium or any Subsidiary for the payment of any Indebtedness of
another person.
22
"Operating Income" shall mean with respect to Millennium and
its Consolidated Subsidiaries for any period the aggregate net income (or
deficit) of Millennium and its Consolidated Subsidiaries for such period equal
to operating revenues and other operating income less, to the extent included in
operating revenues or income, the aggregate for Millennium and its Consolidated
Subsidiaries of (i) operating expenses, (ii) selling, administrative and general
expenses, (iii) depreciation, depletion and amortization of properties and (iv)
any other items that are treated as expenses under GAAP, determined on a
consolidated basis.
"Other Taxes" shall mean any and all present or future
recording, stamp or documentary taxes or any other excise, transfer, sales or
property taxes, charges or similar levies arising from any payment made under
any Loan Document or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan Document.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA and any successor thereto.
"Perfection Certificate" shall mean a certificate in the
form of Exhibit F or any other form approved by the Collateral Agent.
"person" shall mean any natural person, judicial entity,
corporation, division of a corporation, business trust, joint venture,
association, company, limited liability company, partnership or government, or
any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (as
defined in Section 3(2) of ERISA) (other than a Multiemployer Plan) subject to
the provisions of Title IV of ERISA or Section 412 of the Code with respect to
which any Loan Party or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pledge Agreements" shall mean (a) a Pledge Agreement
substantially in the form of Exhibit I hereto among Millennium, Millennium
America, the Domestic Subsidiaries required from time to time to be party
thereto under the definition of "Collateral Requirement" and the Collateral
Agent and (b) in connection with pledges of shares of or other equity interests
in Foreign Subsidiaries, other pledge agreements or similar agreements in form
and substance satisfactory to the Collateral Agent, as the same may be amended,
modified or supplemented from time to time in accordance with the provisions
hereof.
"Preferred Stock" of any person shall mean capital stock of
such person of any class or classes (however designated) that ranks prior, as to
the payment of dividends and/or as to the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or winding up of such person,
to shares of capital stock of any other class of such person.
"Projections" shall mean all financial projections and other
forward-looking or cautionary statements concerning Millennium America,
Millennium and their subsidiaries.
"Qualified Receivables Transaction" shall have the meaning
assigned to it in the Senior Unsecured Notes Indenture.
"Receivables Entity" shall have the meaning assigned to it in
the Senior Unsecured Notes Indenture.
"Register" shall have the meaning assigned to such term in
Section 10.06(f).
23
"Regulation U" shall mean Regulation U of the Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Reportable Event" shall mean any reportable event as defined
in Section 4043(c) of ERISA or the regulations issued thereunder with respect to
a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the
Code).
"Required Lenders" shall mean, at any time, Lenders having
Revolving Exposures, Term Loans and unused Commitments representing at least 51%
of the sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"Reset Date" shall have the meaning assigned to such term in
Section 1.04(a).
"Responsible Officer" of any person shall mean the chairman of
the board of directors, the president, the treasurer, any assistant treasurer,
any vice president, the chief financial officer, the principal accounting
officer, the secretary or any assistant secretary of such person.
"Revolving Availability Period" shall mean the period from and
including the Effective Date to but excluding the earlier of the Revolving
Maturity Date and the date of termination of the Revolving Commitments.
"Revolving Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Commitment" shall mean, with respect to any Lender
at any time, the commitment (if any) of such Lender set forth on Schedule 2.01
(or in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Revolving Commitment) to make Revolving Loans pursuant to Section
2.01(b), as such commitment may be (a) reduced from time to time pursuant to
Section 2.12 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 10.06. The aggregate amount
of the Revolving Commitments on the date hereof is US$175,000,000.
"Revolving Exposure" shall mean, with respect to any Lender at
any time, the sum of (a) the aggregate of the US Dollar Equivalents of the
amounts of such Lender's outstanding Revolving Loans, (b) such Lender's
Swingline Exposure and (c) such Lender's LC Exposure, in each case at such time.
"Revolving Lender" shall mean a Lender with a Revolving
Commitment or, if the Revolving Commitments have terminated or expired, a Lender
with a Revolving Exposure.
"Revolving Loan" shall mean a Loan made by a Revolving Lender
pursuant to Section 2.01(b). Each Revolving Loan denominated in US Dollars shall
be a LIBOR Loan, a NIBOR Loan or an ABR Loan, and each Revolving Loan
denominated in a Committed Foreign Currency shall be a LIBOR loan.
"Revolving Maturity Date" shall mean the fifth anniversary of
the Closing Date.
"Revolving Percentage" shall mean, with respect to any
Revolving Lender, the percentage of the total Revolving Commitment represented
by such Lender's Revolving Commitment. If the Revolving Commitments have
terminated or expired, the Revolving Percentages shall be determined based upon
the Revolving Commitments most recently in effect, giving effect to any
assignments.
24
"SEC" shall mean the Securities and Exchange Commission.
"Secured Parties" shall mean the Administrative Agent, the
Collateral Agent, each Lender, each Issuing Bank, the Swingline Lender, each
other person to which any of the Obligations is owed and each holder from time
to time of Designated Letter of Credit Obligations.
"Securitization Transaction" shall mean any transaction in
which a Foreign Subsidiary sells or otherwise transfers accounts receivable (a)
to one or more third party purchasers or (b) to a special purpose entity that
borrows against such accounts receivable or sells such accounts receivable to
one or more third party purchasers, but only to the extent that amounts received
in connection with the sale or other transfer of such accounts receivable would
not under GAAP be accounted for as liabilities on a consolidated balance sheet
of Millennium America or Millennium. The aggregate amount outstanding under a
Securitization Transaction at any time shall be deemed to equal (a) the
aggregate amount of accounts receivable that have been sold as part of such
Securitization Transaction minus (b) the aggregate amount of such sold accounts
receivable that have been collected or written off.
"Security Agreement" shall mean a Security Agreement
substantially in the form of Exhibit H hereto.
"Security Documents" shall mean the Security Agreement, the
Pledge Agreements, the Indemnity, Contribution and Subrogation Agreement and
each other security agreement or other instrument or document executed and
delivered pursuant to Section 5.10.
"Senior Unsecured Notes" shall mean the Senior Unsecured Notes
due 2008 issued June 18, 2001 by Millennium America under the Senior Unsecured
Note Indenture.
"Senior Unsecured Note Indenture" shall mean the indenture
dated as of June 18, 2001, between Millennium America and The Bank of New York,
as trustee.
"Sterling" or 'L' shall mean the lawful money of the United
Kingdom.
"Subsidiary" shall mean any subsidiary of Millennium.
"subsidiary" shall mean, with respect to any person (the
"parent"), any corporation, association or other business entity of which
securities or other ownership interests representing 50% or more of the ordinary
voting power are, at the time as of which any determination is being made,
beneficially owned by the parent, by one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Swingline Exposure" shall mean, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Revolving Lender at any time shall be its Revolving Percentage
of the total Swingline Exposure at such time.
"Swingline Lender" shall mean Chase, in its capacity as lender
of Swingline Loans hereunder.
"Swingline Loan" shall mean a Loan made pursuant to Section
2.04. Each Swingline Loan shall be an ABR Loan or a Loan bearing interest at
another rate agreed upon in writing by the applicable Borrower and the Swingline
Lender at the time such Loan is made as contemplated in Section 2.02(b).
"Syndication Agent" shall mean Bank of America, N.A.
25
"Taxes" shall mean any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Term Borrowing" shall mean a Borrowing comprised of Term
Loans.
"Term Commitment" shall mean, with respect to any Lender at
any time, the commitment (if any) of such Lender set forth on Schedule 2.01 (or
in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Term Commitment) to make a Term Loan pursuant to Section 2.01(a), as
such commitment may be (a) reduced from time to time pursuant to Section 2.12
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 10.06. The initial amount of each Lender's Term
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Term Commitment, as
applicable. The initial aggregate amount of the Term Commitments is
US$125,000,000.
"Term Lender" shall mean a Lender with a Term Commitment or an
outstanding Term Loan.
"Term Loan" shall mean a Loan made pursuant to Section
2.01(a).
"Term Maturity Date" shall mean the fifth anniversary of the
Closing Date.
"Total Indebtedness" shall mean, as to Millennium and its
Consolidated Subsidiaries, all Indebtedness of Millennium and its Consolidated
Subsidiaries; provided that solely for purposes of determining compliance with
Section 6.11, but not for any other purpose, Total Indebtedness at any time will
be reduced by the aggregate amount of cash and cash equivalents held by
Millennium and its Consolidated Subsidiaries at such time.
"Transactions" shall mean the issuance and sale of the Senior
Unsecured Notes, the repayments of Indebtedness under and termination of the
Existing Credit Agreement, the execution, delivery and performance of the Loan
Documents, the Borrowings and the issuances of Letters of Credit hereunder, the
creation of Liens provided for in the Security Documents and the other
transactions contemplated hereby.
"Transferee" shall have the meaning assigned to such term in
Section 2.21.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate" shall
include the LIBO Rate, the NIBO Rate and the Alternate Base Rate.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the applicable jurisdiction.
"US Dollar Equivalent" shall mean, on any date of
determination, (a) with respect to any amount in US Dollars, such amount, and
(b) with respect to any amount in any Committed Foreign Currency, the equivalent
in US Dollars of such amount, determined by the Administrative Agent pursuant to
Section 1.04 using the Exchange Rate with respect to such Committed Foreign
Currency at the time in effect under the provisions of such Section.
"US Dollars" or "US$" refers to lawful money of the United
States of America.
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
26
SECTION 1.02. Accounting Terms. 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 Millennium notifies the Administrative Agent that it 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 Millennium that the Required
Lenders request an amendment to any provision hereof for such purpose), 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.
SECTION 1.03. Terms Generally. Except where the context
requires otherwise, the definitions in Section 1.01 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". Unless otherwise stated,
references to Sections, Articles, Schedules and Exhibits made herein are to
Sections, Articles, Schedules or Exhibits, as the case may be, of this
Agreement.
SECTION 1.04. Exchange Rates. (a) Not later than 1:00 p.m.,
New York City time, on each Calculation Date, the Administrative Agent shall (i)
determine the Exchange Rate as of such Calculation Date with respect to each
Committed Foreign Currency and (ii) give notice thereof to the Revolving
Lenders. The Exchange Rates so determined shall become effective on the first
Business Day immediately following the relevant Calculation Date (a "Reset
Date"), shall remain effective until the next succeeding Reset Date, and shall
for all purposes of this Agreement (other than Section 10.13 or any other
provision expressly requiring the use of a current Exchange Rate) be the
Exchange Rates employed in converting any amounts between US Dollars and such
Committed Foreign Currencies.
(b) Not later than 5:00 p.m., New York City time, on each
Reset Date and each Borrowing Date, the Administrative Agent shall (i) determine
the Revolving Exposure (after giving effect to any Revolving Loans to be made or
repaid on such date) and (ii) notify the Revolving Lenders and Millennium of the
results of such determination.
ARTICLE II
The Loans
SECTION 2.01. Commitments. (a) Subject to the terms and
conditions set forth herein, each Term Lender agrees to make a Term Loan to
Millennium America on the Effective Date in US Dollars in an amount equal to
such Term Lender's Term Commitment. Amounts repaid in respect of Term Loans may
not be reborrowed.
(b) Subject to the terms and conditions set forth herein, each
Revolving Lender agrees to make Revolving Loans to the Borrowers from time to
time during the Revolving Availability Period in US Dollars and Committed
Foreign Currencies in amounts that will not result in (i) such Lender's
Revolving Exposure (computed as if the US Dollar Equivalent of each Revolving
Loan denominated in a Committed Foreign Currency were equal to 105% of the
actual US Dollar Equivalent of such Loan) exceeding its Revolving Commitment or
(ii) the aggregate Revolving Exposures (computed as provided in the foregoing
clause (i)) exceeding the aggregate Revolving Commitments.
27
(c) Within the foregoing limits, and subject to the terms and
conditions set forth herein, any Borrower may borrow, repay, prepay and reborrow
Revolving Loans.
SECTION 2.02. Loans. (a) Each Term Loan and each Revolving
Loan shall be made as part of a Borrowing consisting of Loans made ratably by
the Lenders in accordance with their respective Commitments; provided, that the
failure of any Lender to make any Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make any
Loan to be made by such other Lender).
(b) Each Term Borrowing and each Revolving Borrowing
denominated in US Dollars shall be comprised entirely of LIBOR Loans, NIBOR
Loans or ABR Loans; each Revolving Borrowing denominated in a Committed Foreign
Currency shall be comprised entirely of LIBOR Loans; and each Swingline Loan
shall be an ABR Loan or a Loan bearing interest at another rate agreed upon in
writing by the applicable Borrower and the Swingline Lender at the time such
Loan is made. Each Lender may at its option make any LIBOR Loan or NIBOR Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided, however, that any exercise of such option shall not affect the
obligation of the applicable Borrower to repay such Loan in accordance with the
terms of this Agreement; provided further, that if the designation of any such
foreign branch or Affiliate shall result in any costs or reductions which would
not otherwise have been applicable and for which such Lender would, but for this
proviso, be entitled to request compensation under Section 2.15 or Section
2.23(b), such Lender shall not be entitled to request such compensation unless
it shall in good faith have determined such designation to be necessary or
advisable to avoid any material disadvantage to it. Borrowings of more than one
Type may be outstanding under either Class of Commitments at the same time;
provided, however, that no Borrower shall be entitled to request any Borrowing
that, if made, would result in an aggregate of more than 15 separate Borrowings
being outstanding hereunder at any one time. For purposes of the foregoing,
Borrowings having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Borrowings. Each Lender
at its option may make any Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the
provisions of Sections 2.15, 2.16, 2.17, 2.21 and 2.23 shall apply to such
Affiliate to the same extent as to such Lender); provided that any exercise of
such option shall not affect the obligation of the applicable Borrower to repay
such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any LIBOR
or NIBOR Borrowing, such Borrowing shall be (i) in the case of a Revolving
Borrowing or Term Borrowing, in an aggregate principal amount that is an
integral multiple of the Borrowing Multiple and not less than the Borrowing
Minimum and (ii) in the case of a Swingline Loan, in an aggregate principal
amount that is an integral multiple of US$500,000 and not less than
US$1,000,000; provided that the Loans comprising an ABR Revolving Borrowing may
be in an aggregate principal amount that is equal to the remaining unused amount
of the Revolving Commitments or that is required to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.05(e).
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.
SECTION 2.03. Notice of Borrowings. (a) In order to request a
Borrowing, the applicable Borrower shall give written or telecopy notice (or
telephone notice promptly confirmed in writing or by telecopy) to the
Administrative Agent in the form of Exhibit B (i) in the case of a LIBOR
Borrowing denominated in US Dollars or a NIBOR Borrowing, not later than 11:00
a.m., New York City time, three Business Days before a proposed Borrowing, (ii)
in
28
the case of a LIBOR Borrowing denominated in a Committed Foreign Currency, not
later than 11:00 a.m., New York City time, four Business Days before a proposed
Borrowing and (iii) in the case of an ABR Borrowing, not later than 10:00 a.m.,
New York City time, on the day of a 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.
(b) Any Borrowing Request shall be irrevocable and shall refer
to this Agreement and specify the following information in compliance with
Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Borrowing or a Term Borrowing;
(ii) the Borrower submitting such Borrowing Request;
(iii) the Class, currency and aggregate principal amount of
the requested Borrowing;
(iv) the date of the requested Borrowing, which shall be a
Business Day;
(v) in the case of a Term Borrowing or a Revolving Borrowing
denominated in US Dollars, whether the requested Borrowing is to be a
LIBOR Borrowing, a NIBOR Borrowing or an ABR Borrowing;
(vi) in the case of a LIBOR Borrowing or a NIBOR Borrowing,
the initial Interest Period to be applicable thereto, which shall be
a period contemplated by the definition of the term "Interest Period";
and
(vii) the location and number of the Borrower's account to
which funds are to be credited, which shall comply with the
requirements of Section 2.06.
If no currency is specified with respect to any requested LIBOR or NIBOR
Revolving Borrowing, then the applicable Borrower shall be deemed to have
selected US Dollars. If no election as to the Type of a requested Borrowing is
specified, then the requested Borrowing shall be (i) in the case of a Borrowing
denominated in US Dollars, an ABR Borrowing and (ii) in the case of a Borrowing
denominated in a Committed Foreign Currency, a LIBOR Borrowing. If no Interest
Period is specified with respect to any requested LIBOR or NIBOR Borrowing, then
the 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. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrowers from time to time during the Revolving Availability Period in
US Dollars in an aggregate principal amount at any time outstanding that will
not result in (i) the aggregate principal amount of outstanding Swingline Loans
exceeding US$25,000,000 or (ii) the aggregate Revolving Exposures exceeding the
aggregate Revolving Commitments; provided that the Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline Loan.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, repay, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, a Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 1:00 p.m., New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested
29
Swingline Loan. The Administrative Agent will promptly advise the Swingline
Lender of any such notice received from a Borrower. The Swingline Lender shall
make each Swingline Loan available to the applicable Borrower by means of a
credit to an account of the Borrower maintained with the Swingline Lender or
another account requested by such Borrower and agreed to by the Swingline Lender
(or, in the case of a Swingline Loan made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e), by remittance to the applicable
Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such
Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which the Revolving
Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Lender's Revolving Percentage of such Swingline
Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, such Lender's Revolving
Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or Event of Default or any reduction or termination of
the Revolving Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each Revolving Lender
shall comply with its obligations under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans denominated in US Dollars made by such Lender (and Section 2.06
shall apply, mutatis mutandis, to the payment obligations of the Revolving
Lenders), and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Revolving Lenders. The
Administrative Agent shall notify each Borrower of any participations in any
Swingline Loan of such Borrower acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from a Borrower (or other party on behalf of the Borrower)
in respect of a Swingline Loan after receipt by the Swingline Lender of the
proceeds of a sale of participations therein shall be promptly remitted to the
Administrative Agent; any such amounts received by the Administrative Agent
shall be promptly remitted by the Administrative Agent to the Revolving Lenders
that shall have made their payments pursuant to this paragraph and to the
Swingline Lender, as their interests may appear. The purchase of participations
in a Swingline Loan pursuant to this paragraph shall not relieve the applicable
Borrower of any default in the payment thereof. Notwithstanding any other
provision of this Agreement, each Swingline Loan in which participations have
been acquired as provided in this paragraph shall, on and at all times after the
delivery of the applicable notice pursuant to the first sentence of this
paragraph, be an ABR Loan.
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 denominated in US Dollars 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 Revolving 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 Borrower to, or entered into by
the Borrower with, any Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Agreement shall control.
30
(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 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 the
applicable Issuing Bank, the Borrower also shall submit to such Issuing Bank a
letter of credit application on a form agreed upon by the Borrower and such
Issuing Bank 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), after giving effect to such issuance,
amendment, renewal or extension (i) the LC Exposure shall not exceed
US$50,000,000, (ii) the aggregate Revolving Exposures shall not exceed the
aggregate Revolving Commitments and no Issuing Bank shall have Letters of Credit
outstanding in an aggregate amount in excess of such Issuing Bank's LC
Commitment.
(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 Revolving 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 Revolving
Lenders, such Issuing Bank hereby grants to each Revolving Lender, and each
Revolving Lender hereby acquires from such Issuing Bank, a participation in such
Letter of Credit equal to such Lender's Revolving Percentage of the aggregate
amount available to be drawn under such Letter of Credit. In consideration and
in furtherance of the foregoing, each Revolving Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
such Issuing Bank, such Lender's Revolving 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, or of any reimbursement
payment required to be refunded to the Borrower for any reason. Each Revolving
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or Event of Default or any reduction or
termination of the Revolving Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If any Issuing Bank shall make any LC
Disbursement in respect of 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 date that such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such
date, or, if such notice has not been received by the Borrower prior to such
time on such date, then not later than 12:00 noon, New York City time, on (i)
the Business Day that the Borrower receives such notice, if such notice is
received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii)
the Business Day immediately following the day that the Borrower receives such
notice, if such notice is not received prior to such time on the day of receipt;
provided that, if such LC Disbursement is not less than $1,000,000, the Borrower
may, subject to
31
the conditions to borrowing set forth herein, request in accordance with Section
2.03 that such payment be financed with an ABR Revolving Borrowing or a
Swingline Loan in an equivalent amount and, to the extent so financed, the
Borrower's obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing or Swingline Loan. If the Borrower fails
to make such payment when due, the Administrative Agent shall notify each
Revolving Lender of the applicable LC Disbursement, the payment then required to
be made to the applicable Issuing Bank in respect thereof and such Lender's
Revolving Percentage thereof. Promptly following receipt of such notice, each
Revolving Lender shall pay to the Administrative Agent its Revolving Percentage
of such payment then due, in the same manner as provided in Section 2.06 with
respect to Loans in US Dollars made by such Lender (and Section 2.06 shall
apply, mutatis mutandis, to the payment obligations of the Revolving Lenders),
and the Administrative Agent shall promptly pay to the applicable Issuing Bank
the amounts so received by it from the Revolving Lenders. Promptly following
receipt by the Administrative Agent of any payment from a Borrower pursuant to
this paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Revolving 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 Revolving Lender pursuant to this paragraph to reimburse an Issuing Bank for
any LC Disbursement (other than the funding of ABR Revolving Loans or a
Swingline Loan 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 Borrowers' obligations 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. None of the Administrative Agent, the Lenders or any Issuing Bank, or
any of their Affiliates, 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
applicable Issuing Bank; provided that the foregoing shall not be construed to
excuse any 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 Borrowers to the extent permitted by applicable
law) suffered by the 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 wilful misconduct on
the part of an Issuing Bank (as finally determined by a court of competent
jurisdiction), such Issuing Bank 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
32
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. Each 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 Revolving 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 Borrower reimburses such
LC Disbursement, at the rate per annum then applicable to ABR Loans; provided
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant
to paragraph (e) of this Section, then Section 2.10 shall apply. Interest
accrued pursuant to this paragraph shall be for the account of applicable
Issuing Bank, except that interest accrued on and after the date of payment by
any Revolving 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.
(i) Resignation or Removal of Issuing Banks. Any Issuing Bank
may resign at any time by giving 90 days' prior written notice to the
Administrative Agent, the Revolving Tranche Lenders and the Borrower, and may be
removed at any time by the Borrower by notice to such Issuing Bank, the
Administrative Agent and the Revolving Lenders. At the time such removal or
resignation shall become effective, the Borrower shall pay all fees accrued for
the account of such Issuing Bank pursuant to Section 2.09(b)(ii) and not yet
paid. After the resignation or removal of an Issuing Bank hereunder, the
retiring Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement and the other
Loan Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters of
Credit.
(j) Designation of Additional Issuing Banks. From time to
time, the Borrower may by notice to the Administrative Agent and the Revolving
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 Borrower and the Administrative Agent, shall set forth
the LC Commitment and Issuing Bank Fees of such Lender and shall be executed by
such Lender, the Borrower 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.
(k) Cash Collateralization. If the Commitments shall be
terminated and the maturity of any outstanding Loans accelerated pursuant to
Article VII, the applicable Borrowers shall promptly deposit in an account with
the Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Revolving Lenders, an amount in cash equal to the LC Exposure as
of the date of such termination and acceleration plus any accrued and unpaid
interest thereon. Each such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrowers
under this Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such
33
deposits, which investments shall be made at the option and sole discretion of
the Administrative Agent and at the Borrowers' risk and expense, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Banks for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrowers for
the LC Exposure at such time or, subject to the consent of Revolving Lenders
with LC Exposures representing greater than 50% of the total LC Exposure, be
applied to satisfy other obligations of the Borrowers under this Agreement.
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 12:00 noon, New York City Time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the applicable Lenders. The Administrative Agent will make
such Loans available to the Borrower by promptly crediting the amounts so
received, in like funds, to an account of the Borrower maintained by the
Administrative Agent or to another account specified by such Borrower and
acceptable to the Administrative Agent in New York, New York; provided that
Swingline Loans shall be made as provided in Section 2.04 and 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; provided further, that if a Borrowing shall not occur on such date
because any condition precedent herein specified shall not have been met, the
Administrative Agent shall return the amounts so received to the respective
Lenders.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the relevant
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 such Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to such Borrower to but excluding the date of payment to the Administrative
Agent, at (x) the Federal Funds Rate (in the case of a Borrowing in US Dollars),
or (y) such other rate as shall customarily be employed for the settlement of
errors between banks (in the case of a Borrowing in a Committed Foreign
Currency). 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. Conversions and Continuations. The applicable
Borrower shall have the right at any time upon prior irrevocable telephonic
notice (which shall be confirmed promptly in writing or by telecopy) to the
Administrative Agent (i) before 10:00 a.m., New York City time, on the day of
conversion, to convert any LIBOR Borrowing or NIBOR Borrowing denominated in US
Dollars into an ABR Borrowing, (ii) before 11:00 a.m., New York City time, three
Business Days prior to conversion, to convert any ABR Borrowing into a LIBOR
Borrowing or a NIBOR Borrowing, (iii) before 11:00 a.m., New York City time,
three Business Days (in the case of a Borrowing denominated in US Dollars), or
four Business Days (in the case of a Borrowing denominated in a Committed
Foreign Currency), prior to conversion, to convert the Interest Period with
respect to any LIBOR Borrowing or NIBOR Borrowing to another permissible
Interest Period and (iv) before 11:00 a.m., New York City time, three Business
Days (in the case of a Borrowing denominated in US Dollars), or four Business
Days (in the case of a Borrowing denominated in a Committed Foreign Currency),
prior to continuation, to continue any LIBOR Borrowing or NIBOR Borrowing into a
subsequent Interest Period, subject, in each case, to the following:
34
(a) if fewer than all the Loans comprising any Borrowing are
to be converted or continued, such conversion or continuation shall be
made pro rata among the Lenders in accordance with the respective Loans
of such Lenders that are part of such Borrowing immediately prior to
such conversion or continuation;
(b) in the case of a conversion or continuation of fewer than
all the Loans comprising any Borrowing, the aggregate principal amount
of Loans converted or continued shall be an amount that would be a
permitted Borrowing amount for Loans of the same Type under Section
2.02(c);
(c) accrued interest on a Loan (or portion thereof) being
converted or continued shall be paid by the applicable Borrower at the
time of conversion or continuation;
(d) if any LIBOR Loan or NIBOR Loan is converted at a time
other than the end of an Interest Period applicable thereto, the
applicable Borrower shall pay any increased costs associated therewith
pursuant to Section 2.17; and
(e) no portion of a Loan may be converted into or continued as
a LIBOR Loan or a NIBOR Loan with an Interest Period ending after the
Revolving Maturity Date or the Term Maturity Date, as applicable; any
portion of a LIBOR Loan or NIBOR Loan denominated in US Dollars for
which the shortest available Interest Period would extend beyond such
date shall be automatically converted at the end of the Interest Period
at the time in effect into an ABR Loan, and any portion of a Loan
denominated in a Committed Foreign Currency for which the shortest
available Interest Period would extend beyond such date shall be
prepaid at the end of the Interest Period currently in effect with
respect thereto.
The Interest Period applicable to any LIBOR Loan or NIBOR Loan
resulting from a conversion or continuation of a Loan shall be specified by the
applicable Borrower in the irrevocable notice of conversion or continuation
delivered pursuant to this Section; provided, however, that if no such Interest
Period shall be specified, the applicable Borrower shall be deemed to have
selected an Interest Period of one month's duration, in the case of a LIBOR Loan
or a NIBOR Loan. If the applicable Borrower shall not have given timely notice
to continue any Loan into a subsequent Interest Period (and shall not otherwise
have given timely notice to convert such Loan), such Loan shall, subject to
clauses (c), (d), and (e) above, automatically be continued into a new Interest
Period, which shall be of one month's duration in the case of a LIBOR Loan or a
NIBOR Loan. The Administrative Agent shall promptly advise the Lenders of any
notice given pursuant to this Section and of each Lender's portion of the
continuation or conversion hereunder. This Section shall not apply to Swingline
Borrowings, which may not be converted or continued.
SECTION 2.08. Fees. (a) Millennium America agrees to pay to
the Administrative Agent, in US Dollars, for the account of the office (or
Affiliate) of each Revolving Lender from which such Revolving Lender would make
Revolving Loans in US Dollars hereunder (which office or Affiliate shall be
specified by each Revolving Lender in a notice delivered to the Administrative
Agent prior to the initial payment to such Revolving Lender under this
paragraph), a facility fee (the "Facility Fee"), which shall accrue at the Fee
Percentage on the daily aggregate amount of the Revolving Commitment of such
Revolving Lender (whether used or unused) during the period from and including
the Closing Date to but excluding the date on which such Revolving Commitment
terminates; provided that, if such Revolving Lender continues to have any
Revolving Exposure after its Revolving Commitment terminates, then such facility
fee shall continue to accrue on the daily amount of such Revolving Lender's
Revolving Exposure from and including the date on which its Revolving Commitment
terminates to but excluding the date on which such Revolving Lender ceases to
have any
35
Revolving Exposure. Accrued facility fees shall be payable in arrears on the
last day of March, June, September and December of each year (commencing on the
first such date to occur after the date hereof), on each date on which the
Revolving Commitments terminate and on the Revolving Maturity Date; provided
that any facility fees accruing after the Revolving Maturity Date shall be
payable on demand. All facility fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(b) Millennium America agrees to pay (i) to the Administrative
Agent for the account of each Revolving Lender a participation fee (the "LC
Participation Fee") with respect to its participations in Letters of Credit,
which shall accrue at the Applicable Rate appearing in the column captioned
"LIBOR/NIBOR Margin" in the table in the definition of such term and used in
determining interest on LIBOR or NIBOR Revolving Loans, on the average daily
amount of such Revolving Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Closing Date to but excluding the later of the date on which such
Lender's Revolving Commitment terminates and the date on which such Revolving
Lender ceases to have any LC Exposure, and (ii) to each Issuing Bank a fronting
fee, which shall accrue at the rate or rates per annum separately agreed upon
between Millennium America and the applicable Issuing Bank on the average daily
amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the Closing
Date to but excluding the later of the date of termination of the Revolving
Commitments and the date on which there ceases to be any LC Exposure, as well as
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 (the fees referred to in this clause (ii) being collectively called
the "Issuing Bank Fees"). 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 each such date, commencing on the first such date to occur
after the Closing Date; provided that all such fees shall be payable on the date
on which the Revolving Commitments terminate and any such fees accruing after
the date on which the Revolving Commitments terminate shall be payable on
demand. Any other fees payable to an Issuing Bank 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 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) Millennium America agrees to pay to the Administrative
Agent, for its own account, agent, arrangement and administrative fees (the
"Administrative Fees") at the times and in the amounts agreed upon in the fee
letter agreement dated May 11, 2001, between Millennium America and the
Administrative Agent.
(d) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent, for distribution, if and as
appropriate, among the Revolving Lenders, or to the applicable Issuing Bank, as
the case may be. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.09. Interest on Loans. (a) Subject to the provisions
of Section 2.10, ABR Loans (including Swingline Loans that are ABR Loans) shall
bear interest (computed on the basis of the actual number of days elapsed over a
year of 365 or 366 days, as the case may be, for periods during which the
Alternate Base Rate is determined by reference to the prime rate of Chase and
360 days for other periods) at a rate per annum equal to the Alternate Base Rate
plus the Applicable Rate appearing in the column captioned "ABR Margin" in the
table in the definition of "Applicable Rate". Interest on each ABR Loan shall be
payable on each applicable Interest Payment Date. The Alternate Base Rate shall
be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
36
(b) Subject to the provisions of Section 2.10, each LIBOR Loan
and each NIBOR Loan shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days or, in the case of a LIBOR Loan
denominated in Sterling, 365 days) at a rate per annum equal to the LIBO Rate or
NIBO Rate, as the case may be, for the Interest Period in effect for such Loan
plus the Applicable Rate appearing in the column captioned "LIBOR/NIBOR Margin"
in the table in the definition of "Applicable Rate". Interest on each LIBOR Loan
and each NIBOR Loan shall be payable on each applicable Interest Payment Date.
The LIBO Rate or NIBO Rate, as applicable, for each Interest Period shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error. The Administrative Agent shall promptly advise
the applicable Borrowers and each applicable Lender of such determination.
(c) Subject to the provisions of Section 2.10, each Swingline
Loan that is not an ABR Loan shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days unless otherwise agreed by
the applicable Borrower and the Swingline Lender) at the rate per annum agreed
upon by the applicable Borrower and the Swingline Lender as contemplated by
Section 2.02(b). Interest on each Swingline Loan that is not an ABR Loan shall
be payable on each applicable Interest Payment Date.
(d) Interest on each Loan shall accrue from and including the
date on which such Loan is made to but excluding the date such Loan is repaid,
unless the date of repayment is the same as the date such Loan is made and the
amount repaid is not reborrowed on such date, in which case such date shall be
included.
SECTION 2.10. Interest on Overdue Amounts; Alternative Rate of
Interest. (a) If any Borrower shall default in the payment of the principal of
or interest on any Loan or any Fees or other amount becoming due hereunder,
whether by scheduled maturity, notice of prepayment, acceleration or otherwise,
such Borrower shall on demand from time to time from the Administrative Agent
pay interest from and including the date of such default, to the extent
permitted by law, on such defaulted amount up to (but not including) the date of
actual payment (after as well as before judgment) at a rate per annum (computed
as provided in Section 2.09(a)) equal to (i) in the case of the principal of any
Loan, the rate otherwise applicable to such Loan plus 2% per annum and (ii) in
the case of any other amount, the Alternate Base Rate plus 2% per annum.
(b) In the event, and on each occasion, that on the day two
Business Days prior to the commencement of any Interest Period for a LIBOR
Borrowing or NIBOR Borrowing the Administrative Agent shall have determined that
deposits in the applicable currency in the requested principal amounts of the
LIBOR Loans or NIBOR Loans, as applicable, are not generally available in the
London interbank market or the international interbank market, as applicable, to
Lenders representing a majority of the Commitments pursuant to which such Loans
are to be made, or that reasonable means do not exist for ascertaining the LIBO
Rate or the NIBO Rate or that the rate at which such deposits in the applicable
currency are being offered will not adequately and fairly reflect the cost to
Lenders representing a majority of the Commitments pursuant to which such Loans
are to be made of making such LIBOR Loans or NIBOR Loans, as applicable, during
such Interest Period, the Administrative Agent shall, as soon as practicable
thereafter, give written or telecopy notice of such determination to the
Borrowers and any request by any Borrower for a LIBOR Borrowing in any affected
currency or a NIBOR Borrowing shall, until the circumstances giving rise to such
notice no longer exist, (i) if such notice relates to a Revolving Borrowing
denominated in US Dollars, be deemed a request for an ABR Borrowing; provided,
however, that such Borrower may withdraw any such request prior to the making of
any such ABR Borrowing or (ii) otherwise, be of no force or effect (and such
Borrowing, if already outstanding, shall be prepaid at the end of the Interest
Period currently in effect therefor). Each determination by the Administrative
Agent hereunder shall be conclusive absent manifest error.
37
SECTION 2.11. Repayment of Loans; Evidence of Debt. (a) Each
Borrower hereby agrees as to Loans made to it that (i) the outstanding principal
balance of each Revolving Loan shall be payable on the Revolving Maturity Date
and (ii) the outstanding principal balance of each Swingline Loan shall be
payable on the earlier of the Revolving Maturity Date and the fifth day after
such Swingline Loan is made; provided that on each date that a Revolving
Borrowing is made, the Borrower shall repay all Swingline Loans that were
outstanding on the date such Borrowing was requested.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which
it will record (i) the amount of each Loan made hereunder, the currency of each
Loan, the Borrower of each Loan, the Class and Type of each Loan and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from each Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from any Loan Party and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) above shall, to the extent permitted by applicable law,
be prima facie evidence of the existence and amounts of the obligations therein
recorded; provided, however, 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 obligations of the Borrowers to repay the Loans in
accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in
the event any Lender shall request a promissory note or notes evidencing the
Loans made by it hereunder to any Borrower, such Borrower shall deliver such a
note or notes, satisfactory to the Administrative Agent, payable to such Lender
and its registered assigns, and the interests represented by such note or notes
shall at all times (including after any assignment of all or part of such
interests pursuant to Section 10.06) be represented by one or more promissory
notes payable to the payee named therein or its registered assigns.
SECTION 2.12. Termination and Reduction of Commitments. (a)
Unless previously terminated, the Term Commitment shall be automatically and
permanently terminated at 5:00 p.m., New York City time, on the Effective Date
and (ii) the Revolving Commitments shall permanently terminate on the Revolving
Maturity Date.
(b) Upon at least four Business Days' prior irrevocable
written or telecopy notice to the Administrative Agent (a copy of which the
Administrative Agent shall promptly provide to each Lender), Millennium America
may at any time in whole permanently terminate, or from time to time in part
permanently reduce, the Commitments of any Class; provided, however, that (i)
each partial reduction of the Commitments of any Class shall be in an integral
multiple of US$1,000,000 and in a minimum principal amount of US$10,000,000 and
(ii) no such termination or reduction shall be made if after giving effect
thereto the aggregate Revolving Exposures would exceed the aggregate Revolving
Commitments.
(c) Each reduction in the Commitments of any Class hereunder
shall be made ratably among the applicable Lenders in accordance with their
respective Commitments of such Class. Millennium America shall pay to the
Administrative Agent for the accounts of the applicable Lenders, on the date of
each termination or reduction of any Commitments, the
38
Facility Fee on the amount of the Commitments so terminated or reduced accrued
through the date of such termination or reduction.
SECTION 2.13. Amortization of Term Loans. (a) On each
Amortization Date the Borrowers shall repay the Term Borrowings in an amount
equal to the percentage set forth below opposite the year in which such
Amortization Date occurs of the aggregate amount of Term Loans made on the
Effective Date:
Year Quarterly Payment
---- -----------------
July 1, 2001 through September 29, 2002 0%
September 30, 2002 through September 29, 2003 1.25%
September 30, 2003 through September 29, 2004 1.25%
September 30, 2004 through September 29, 2005 1.25%
September 30, 2005 through the Term Loan Maturity Date 21.25%
(b) To the extent not previously paid, all Term Loans shall be
due and payable on the Term Loan Maturity Date, together with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of
payment.
(c) Any prepayment of the Term Borrowings shall be applied to
reduce ratably the subsequent scheduled repayments of Term Borrowings to be made
pursuant to this Section.
(d) Prior to any repayment of any Term Borrowings hereunder,
the Company shall select the Borrowing or Borrowings to be repaid and shall
notify the Administrative Agent by telephone (confirmed by telecopy) of such
selection not later than 11:00 a.m., New York City time, three Business Days
before the scheduled date of such repayment. Repayments of Term Borrowings shall
be accompanied by accrued interest on the amount repaid.
(e) To the extent not previously paid, all Revolving Loans
shall be due and payable on the Revolving Maturity Date.
(f) All repayments pursuant to this Section 2.13 shall be
subject to Section 2.17, but otherwise without premium or penalty.
SECTION 2.14. 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, upon giving telephonic notice (which shall be confirmed
promptly in writing or by telecopy) to the Administrative Agent (which shall
promptly provide a copy to each applicable Lender): (i) before 11:00 a.m., New
York City time, four Business Days prior to prepayment, in the case of a LIBOR
Borrowing or NIBOR Borrowing and (ii) before 11:00 a.m., New York City time, one
Business Day prior to prepayment, in the case of an ABR Borrowing; provided,
however, that each such partial prepayment of principal shall be in a minimum
principal amount equal to the Borrowing Minimum and an integral multiple of the
Borrowing Multiple.
(b) In the event and on each occasion that the aggregate
Revolving Exposures (computed as if the US Dollar Equivalent of each Revolving
Loan denominated in a Committed Foreign Currency were equal to 105% of the
actual US Dollar Equivalent of such Loan) shall exceed the aggregate Revolving
Commitments, then (i) on each day that is the last day of an Interest Period for
any LIBOR or NIBOR Revolving Borrowing, and (ii) on each other date in the event
ABR Revolving Borrowings or Swingline Loans shall be outstanding, the applicable
Borrowers shall prepay such Revolving Borrowings or Swingline Loans, as the case
may be, in an amount equal to the lesser of (A) the amount necessary to
eliminate such excess (after giving effect to any other prepayment of Loans on
such day) and (B) the amount of the applicable Borrowings referred to in clause
(i) or (ii), as applicable. The Administrative Agent shall
39
promptly notify Millennium America in the event it determines that any
prepayment is required under this paragraph. In the event and on each occasion
that the aggregate Revolving Exposures (computed on the basis of the actual US
Dollar Equivalent of each Revolving Loan denominated in a Committed Foreign
Currency) shall exceed the aggregate Revolving Commitments, then the Borrowers
shall, within five Business Days, prepay Revolving Borrowings or Swingline Loans
in an amount sufficient to eliminate such excess (after giving effect to any
other prepayment of Loans on such day).
(c) In the event and on each occasion that Millennium or any
Domestic Subsidiary shall complete any Asset Sale at a time when the Leverage
Ratio, determined as of the end of the most recent fiscal quarter for which
financial statements have been delivered pursuant to Section 5.01(a) or (b),
shall be equal to or greater than 3.75 to 1.00, Millennium America shall, not
later than the third Business Day following any receipt by Millennium or any
Subsidiary of Net Cash Proceeds with respect to such Asset Sale, prepay
outstanding Term Loans in an amount equal to 50% of such Net Cash Proceeds.
(d) All prepayments under this Section shall be subject to
Section 2.17 but otherwise without premium or penalty. All prepayments shall be
accompanied by accrued interest on the principal amount being prepaid to the
date of prepayment.
SECTION 2.15. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein (but subject to paragraph (d)
below and Section 2.21), if after the date of this Agreement any change in
applicable law or regulation or in the interpretation or administration thereof
by any Governmental Authority charged with the interpretation or administration
thereof (whether or not having the force of law) shall change the basis of
taxation of payments to any Lender or any Issuing Bank of the principal of or
interest on any LIBOR Loan or NIBOR Loan made by such Lender, any LC
Disbursement or any Fees or other amounts payable hereunder (other than changes
in respect of taxes imposed on the overall net income of such Lender or such
Issuing Bank by the jurisdiction in which such Lender or such Issuing Bank has
its principal office or by any political subdivision or taxing authority
therein), or shall 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 such Lender or such Issuing Bank or shall
impose on such Lender or Issuing Bank, or the London interbank market or the
international interbank market for deposits of the applicable currency any other
condition affecting this Agreement or LIBOR Loans or NIBOR Loans made by such
Lender or Letters of Credit issued by such Issuing Bank, and the result of any
of the foregoing shall be to increase the cost to such Lender or such Issuing
Bank of making or maintaining any such Loan or 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) in respect thereof by an amount deemed by such Lender or such Issuing
Bank to be material, then the applicable Borrower (or, if such cost or reduction
shall not be attributable to a particular Loan or Loans, Millennium America),
will pay to such Lender or such Issuing Bank upon demand such additional amount
or amounts as will compensate such Lender or such Issuing Bank for such
additional costs incurred or reduction suffered.
(b) Subject to Section 2.22, if any Lender or any Issuing Bank
shall have determined that the adoption after the date hereof of any law, rule,
regulation or guideline regarding capital adequacy, or any change in any of the
foregoing or in the interpretation or administration of any of the foregoing by
any Governmental Authority charged with the interpretation or administration
thereof, or compliance by any Issuing Bank or any Lender (or any lending office
of such Lender) or any Issuing Bank or any Lender's or any Issuing Bank's
holding company with any request or directive regarding capital adequacy
(whether or not having the force of law) made or promulgated after the date
hereof by any such Governmental Authority, 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,
40
as a consequence of its obligations under this Agreement or the Loans made by
such Lender or such Issuing Bank's pursuant hereto 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 adoption, change or compliance (taking
into consideration such Lender's or such Issuing Bank's guidelines with respect
to capital adequacy) by an amount deemed by such Lender or such Issuing Bank to
be material, then from time to time Millennium America shall pay to such Lender
or such Issuing Bank such additional amount or amounts as will compensate such
Lender or such Lender's or such Issuing Bank's holding company for any such
reduction suffered.
(c) A certificate of each Lender or each Issuing Bank setting
forth such amount or amounts as shall be necessary to compensate such Lender (or
its participating banks or other entities pursuant to Section 10.06) or such
Issuing Bank as specified in paragraph (a) or (b) above, as the case may be,
shall be delivered to Millennium America and shall be conclusive absent manifest
error. Except as provided in paragraph (d) below, the applicable Borrowers or
Millennium America, as the case may be, shall pay each Lender or each Issuing
Bank the amount shown as due on any such certificate delivered by such Lender or
such Issuing Bank within 30 days after receipt of the same. Each Lender or each
Issuing Bank shall submit such a certificate no more often than monthly;
provided, however, that certificates with respect to amounts due with respect to
identifiable Loans may be submitted at the ends of such Loans' Interest Periods.
(d) Failure on the part of any Lender or any Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or such Issuing Bank's rights with respect to any period to demand
compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital with respect to such period or any
other period; provided, however, that no Lender or Issuing Bank shall be
entitled to compensation under this Section for any costs incurred or reductions
suffered with respect to any date unless it shall have notified Millennium
America or Millennium that it will demand compensation for such costs or
reductions under paragraph (c) above not more than 90 days after the later of
(i) such date and (ii) the date on which it shall have become aware of such
costs or reductions. Notwithstanding any other provision of this Section, no
Lender or Issuing Bank shall demand compensation for any increased cost or
reduction referred to above if it shall not at the time be the general policy or
practice of such Lender to demand such compensation in similar circumstances
under comparable provisions of other credit agreements, if any. If any Lender or
any Issuing Bank shall receive as a refund any moneys from any source that it
has listed on the certificate provided pursuant to (c) above as an increased
cost, to the extent that the applicable Borrower or Millennium America, as the
case may be, has previously paid such increased cost to such Lender or such
Issuing Bank's, such Lender or such Issuing Bank shall promptly forward such
refund to such Borrower or Millennium America without interest.
SECTION 2.16. Change in Legality. (a) Notwithstanding anything
to the contrary herein contained (but subject to Section 2.21), if after the
date of this Agreement any change in any law or regulation or in the
interpretation thereof or any new law, regulation or interpretation by any
Governmental Authority charged with the administration or interpretation thereof
or any judgment, order or directive of any competent court, tribunal or
authority shall make it unlawful for any Lender or its Applicable Lending Office
to make or maintain any LIBOR Loan or NIBOR Loan or to give effect to its
obligations as contemplated hereby with respect to any LIBOR Loan or NIBOR Loan
or shall limit the convertibility into US Dollars of any Committed Foreign
Currency in which any Loan shall be denominated or make such conversion
commercially impracticable (collectively, an "Illegality"), then, by written
notice to Millennium America or Millennium and to the Administrative Agent, such
Lender, so long as such Illegality continues to exist:
(i) may declare that LIBOR Loans, NIBOR Loans or Loans in any
affected Committed Foreign Currency, as applicable, will not thereafter
be made by such Lender
41
hereunder, whereupon any request by any Borrower for a LIBOR Borrowing,
a NIBOR Borrowing or a Borrowing in such Committed Foreign Currency, as
applicable, (x) shall, as to such Lender only, be deemed a request for
an ABR Borrowing denominated in US Dollars or (y) at the option of such
Borrower, shall be withdrawn as to such Lender prior to the time for
making such Borrowing; and
(ii) shall promptly enter into negotiations with the
applicable Borrower and negotiate in good faith to agree to a solution
to such Illegality; provided, however, that if such an agreement has
not been reached by the date at which such change in law is given
effect with respect to the outstanding LIBOR Loans, NIBOR Loans or
Loans in the affected Committed Foreign Currency of such Lender, such
Borrower shall immediately prepay the affected Loans.
In the event any Lender shall exercise its rights under (i) above with respect
to Loans in any affected Committed Foreign Currency, all payments and
prepayments in respect of the ABR Loans made by such Lender shall thereafter be
made in US Dollars.
(b) For purposes of this Section, a notice by a Lender shall
be effective as to each Loan, if lawful, on the last day of the then current
Interest Period with respect thereto; provided, however, that such notice shall
be effective on the date of receipt if there are no outstanding LIBOR Loans,
NIBOR Loans or Loans in the affected Committed Foreign Currency; provided
further, that if it is not lawful for such Lender to maintain any Loan in its
current form until the end of the Interest Period applicable thereto, then the
notice shall be effective upon receipt.
(c) Each Lender which has delivered a notice of Illegality
pursuant to paragraph (a) above agrees that it will notify Millennium America or
Millennium as soon as practicable if the conditions giving rise to the
Illegality cease to exist.
SECTION 2.17. Indemnity. Each Borrower agrees, severally and
not jointly, to indemnify each Lender against any loss or expense which such
Lender may sustain or incur as a consequence of (a) any payment, prepayment or
conversion of a LIBOR Loan or NIBOR Loan made to it required by any provision of
this Agreement or otherwise made, or any transfer of any such Loan or interest
therein pursuant to Section 2.22(b), on a date other than the last day of the
applicable Interest Period (including any Interest Period resulting from the
automatic continuation of any Loan as provided in the antepenultimate sentence
of Section 2.07), (b) any default in payment or prepayment of the principal
amount of any Loan made to it or any part thereof or interest accrued thereon,
as and when due and payable (whether at scheduled maturity, by notice of
prepayment, acceleration or otherwise), (c) the occurrence of any Event of
Default, including any loss sustained or incurred or to be sustained or incurred
in liquidating or employing deposits from third parties acquired to effect or
maintain any Loan or any part thereof as a LIBOR Loan or NIBOR Loan, (d) any
failure by such Borrower to fulfill on the date of any Borrowing by it hereunder
the applicable conditions set forth in Article IV or (e) any failure of such
Borrower to borrow or to convert or continue any Loan made to it hereunder after
irrevocable notice of such borrowing, conversion or continuation shall have been
given. Such loss or expense shall be the difference as reasonably determined by
such Lender between (x) an amount equal to the principal amount of such LIBOR
Loan or NIBOR Loan being paid, prepaid, converted or transferred or not
borrowed, converted or continued multiplied by a percentage per annum (computed
on the basis of a 360-day year and actual days remaining for the balance of the
Interest Period applicable, or which would have been applicable, to such LIBOR
Loan or NIBOR Loan being paid, prepaid, converted, transferred or not borrowed,
converted or continued) equal to the greater of (i) the LIBO Rate or NIBO Rate
applicable to such Loan being paid, prepaid, converted or transferred or not
borrowed, converted or continued or (ii) such Lender's cost of obtaining the
funds for such LIBOR Loan or NIBOR Loan being paid, prepaid, converted,
transferred or not borrowed, converted or continued, but in the case of LIBOR
Loans or NIBOR Loans, not in excess of the
42
LIBO Rate or NIBO Rate applicable to such Loan plus 1/16th of 1% per annum, and
(y) any lesser amount that would be realized by such Lender in reemploying the
funds received in payment, prepayment, conversion or transfer or as a result of
the failure to borrow, convert or continue during the period from the date of
such payment, prepayment, conversion or transfer or failure to borrow, convert
or continue to the end of the applicable Interest Period at the interest rate
that would apply to an interest period of approximately such duration. Any such
Lender shall provide to the applicable Borrower a statement explaining the
amount of any such loss or expense, which statement shall, in the absence of
manifest error, be conclusive.
SECTION 2.18. Payments Generally. (a) Each Borrower shall make
each payment required to be made by it hereunder, in immediately available
funds, without set-off or counterclaim, (i) in the case of payments relating to
any Loan denominated in US Dollars, to the Loan and Agency Services Group of the
Administrative Agent at its office at One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Account No. ▇▇▇▇▇▇▇▇▇, ABA No. ▇▇▇▇▇▇▇▇▇) not later than
11:00 a.m., New York City time, on the date due, (ii) in the case of any amount
denominated in Euros, to the Administrative Agent at its office at ▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (Account No. 6001600037 held with Chase Manhattan Bank
AG, Frankfurt), not later than 11:00 a.m., Frankfurt time, on the date due,
(iii) in the case of any amount denominated in Sterling, to the Administrative
Agent at its office at ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (Account No.
▇▇▇▇▇▇▇▇) not later than 11:00 a.m., London time, on the date due, and (iv) in
the case of any amount denominated in a Committed Foreign Currency other than
Euros and Sterling, to the Administrative Agent at the address specified by the
Administrative Agent to such account and at such time as it shall from time to
time specify on the date due, or, in any such case, at such other address and
account as the Administrative Agent shall from time to time specify in a notice
delivered to the Borrowers and to the applicable Lenders; provided that payments
to be made directly to any Issuing Bank or Swingline Lender as expressly
provided herein and except that payments pursuant to Section 2.15, Section 2.17,
Section 2.21, Section 2.23 and Section 10.04 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 of principal or interest in respect of any Loan (or of
any breakage indemnity or payment under Section 2.17 in respect of any Loan)
shall be made in the currency of such Loan; all other payments hereunder and
under each other Loan Document shall be made in US Dollars. Any payment required
to be made by the Administrative Agent hereunder shall be deemed to have been
made by the time required if the Administrative Agent shall, at or before such
time, have taken the necessary steps to make such payment in accordance with the
regulations or operating procedures of the clearing or settlement system used by
the Administrative Agent to make such payment. Any amount payable by the
Administrative Agent to one or more Lenders in the national currency of a member
state of the European Union that has adopted the Euro as its lawful currency
shall be paid in Euro.
SECTION 2.19. Pro Rata Treatment. Each payment of Facility
Fees and LC Participation Fees and each reduction of the Commitments of a Class
shall be allocated pro rata among the Lenders in accordance with their
respective applicable Commitments. Except as required under Section 2.16, each
payment or prepayment of principal of any Borrowing and each continuation or
conversion of any Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective principal
amounts of their outstanding Loans comprising such Borrowing. Each payment of
interest on any Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective amounts of
accrued and unpaid interest on their outstanding Loans comprising such
Borrowing. Each Lender agrees that in computing such Lender's portion of any
Borrowing to be
43
made hereunder, the Administrative Agent may, in its discretion, round each
Lender's portion of such Borrowing to the next higher or lower whole unit amount
of the applicable currency.
SECTION 2.20. Sharing of Setoffs. Each Lender agrees that if
it shall, through the exercise of a right of banker's lien, setoff or
counterclaim or pursuant to a secured claim under Section 506 of Title 11 of the
United States Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, obtain payment (voluntary or
involuntary) in respect of any Loan or Loans or participations in LC
Disbursements or Swingline Loans as a result of which the unpaid principal
portion of its Loans and participations in LC Disbursements or Swingline Loans
shall be proportionately less than the unpaid principal portion of the Loans and
participations in LC Disbursements or Swingline Loans of any other Lender, it
shall be deemed simultaneously to have purchased from such other Lender at face
value, and shall promptly pay to such other Lender the purchase price for, a
participation in the applicable Loans or participations in LC Disbursements or
Swingline Loans of such other Lender, so that the aggregate unpaid principal
amount of such Loans of each Class and participations in LC Disbursements or
Swingline Loans and participations in the foregoing held by each Lender shall be
in the same proportion to the aggregate unpaid principal amount of all such
Loans of such Class and participations in LC Disbursements or Swingline Loans
then outstanding as the principal amount of its Loans of such Class and
participations in LC Disbursements or Swingline Loans prior to such exercise of
banker's lien, setoff or counterclaim or other event was to the principal amount
of all such Loans and participations in LC Disbursements or Swingline Loans
outstanding prior to such exercise of such banker's lien, setoff or counterclaim
or other event; provided, however, that (i) if any such purchase or adjustments
shall be made pursuant to this Section and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest and (ii) the provisions of this Section
shall not be construed to apply to (A) any payment made by any Borrower pursuant
to and in accordance with the express terms of this Agreement or (B) any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant other than
Millennium, any Borrower, any Subsidiary or any Affiliate thereof. Each Borrower
expressly consents to the foregoing arrangements and agrees that any Lender
holding a participation in a Loan, LC Disbursement or Swingline Loan made to it
and deemed to have been so purchased may exercise any and all rights of banker's
lien, setoff or counterclaim with respect to any and all moneys owing by such
Borrower to such Lender by reason thereof as fully as if such Lender had made a
Loan directly to or acquired a participation in an LC Disbursement or Swingline
Loan of such Borrower in the amount of such participation.
SECTION 2.21. Taxes. (a) Except as required by law, any and
all payments by or on account of any obligation of any Borrower hereunder or
under any other Loan Document shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if any
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, the
Issuing Bank or the applicable Lender (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 shall make such deductions and (iii) such Borrower shall pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) Each Borrower shall indemnify the Administrative Agent,
each Issuing Bank and each Lender, within 10 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, each Issuing Bank, or such
44
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of such Borrower hereunder or under any other Loan Document
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and 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 Millennium America by a Lender, 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 any Borrower to a Governmental Authority, such Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) In the case of a Lender (or Transferee) which is organized
outside the jurisdiction in which any Borrower to which it makes a Loan is
located, (i) such Lender (or Transferee) shall so notify such Borrower and the
Administrative Agent and shall also notify such Borrower and the Administrative
Agent of any change in its funding office and shall in each case timely deliver
to such Borrower and the Administrative Agent, to the extent it is qualified to
do so under applicable law, such properly completed and executed certificates,
documents or other evidence as are required by applicable law to establish that
payments hereunder are not subject to withholding tax (or subject to a reduced
rate of tax) by any Governmental Authority of the jurisdiction in which such
Borrower is located; provided that no Lender shall be required to deliver any
such documentation or evidence with respect to an exemption from or reduction of
withholding taxes imposed under the law of a jurisdiction other than an Initial
Jurisdiction unless the applicable Borrower shall notify it of the availability
of such exemption or reduction and shall request the delivery of such
documentation; (ii) each Lender (or Transferee) agrees to take such steps
(including a change in its relevant funding office) as reasonably may be
available to it under applicable tax laws and any applicable tax treaty or
convention (including, if legally available, furnishing a certificate or
document) to obtain an exemption from, or reduction (to the lowest applicable
rate) of, Indemnified Taxes and Other Taxes, except to the extent that taking
such a step would be materially disadvantageous to such Lender (or Transferee);
and (iii) in the case of any Borrower located in an Initial Jurisdiction, unless
such Borrower and the Administrative Agent have received documents reasonably
satisfactory to them indicating that payments hereunder are not subject to
withholding tax pursuant to the laws of the relevant Initial Jurisdiction or any
relevant treaty, such Borrower or the Administrative Agent shall withhold taxes
from such payments at the applicable statutory rate.
(f) If a Lender (or Transferee) or the Administrative Agent
shall become aware that it is entitled to receive a refund in respect of Taxes
or Other Taxes, it shall promptly notify the applicable Borrower of the
availability of such refund and shall, within 10 days after receipt of a request
by such Borrower, apply for such refund at such Borrower's expense. If any
Lender (or Transferee) or the Administrative Agent receives a refund in respect
of any Taxes or Other Taxes for which such Lender (or Transferee) or the
Administrative Agent has received payment from any Loan Party under this
Section, it shall promptly repay such refund (including any penalties or
interest received with respect thereto) to such Loan Party, net of all
out-of-pocket expenses of such Lender, provided that such Loan Party, upon the
request of such Lender (or Transferee) or the Administrative Agent, agrees to
return such refund (plus penalties, interest or other charges) to such Lender
(or Transferee) or the Administrative Agent in the event such Lender (or
Transferee) or the Administrative Agent is required to repay such refund.
(g) The term "Lender", as used in this Section, shall include
any transferee or assignee of a Lender, including a participation holder (any
such Person being called a "Transferee"). The term "Initial Jurisdiction", as
used in this Section, shall mean the United
45
States of America (and, in the case of Revolving Loans and Borrowings and
payments related thereto, the United Kingdom) and any political subdivision
thereof, as the case may be.
SECTION 2.22. Duty to Mitigate; Assignment of Commitments
Under Certain Circumstances. (a) Any Lender (or Transferee) claiming any
additional amounts payable pursuant to Section 2.15 or Section 2.23(b) or
exercising its rights under Section 2.16 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document requested by Millennium or to change the jurisdiction of its Applicable
Lending Office if the making of such a filing or change would avoid the need for
or reduce the amount of any such additional amounts which may thereafter accrue
or avoid the circumstances giving rise to such exercise and would not, in the
sole determination of such Lender (or Transferee), be otherwise disadvantageous
to such Lender (or Transferee).
(b) In the event that any Lender shall have delivered a notice
or certificate pursuant to Section 2.15 2.16 or 2.23(b), or any Borrower shall
be required to make additional payments to any Lender under Section 2.21,
Millennium shall have the right, at its own expense (which shall include the
processing and recordation fee referred to in Section 10.06(b)), upon notice to
such Lender and the Administrative Agent, to require such Lender to transfer and
assign without recourse (in accordance with and subject to the restrictions
contained in Section 10.06) all its interests, rights and obligations hereunder
to another financial institution approved by the Administrative Agent and, if a
Revolving Commitment is being assigned, the Issuing Bank and Swingline Lender
(which approval shall not be unreasonably withheld) which shall assume such
obligations; provided, however, that (i) no such assignment shall conflict with
any law, rule or regulation or order of any Governmental Authority and (ii) the
assignee or Millennium shall pay to the affected Lender in immediately available
funds on the date of such assignment the principal of and interest accrued to
the date of payment on the Loans made by it hereunder and its participants in LC
Disbursements and Swingline Loans, and all other amounts accrued for its account
or owed to it hereunder (including the additional amounts asserted and payable
pursuant to Section 2.15, 2.21 or 2.23(b), if any).
SECTION 2.23. Additional Reserve Costs. (a) If and so long as
any Lender is required to make special deposits with the Bank of England, to
maintain reserve asset ratios or to pay fees, in each case in respect of such
Lender's LIBOR Loans in any Committed Foreign Currency, such Lender may require
the relevant Borrower to pay, contemporaneously with each payment of interest on
each of such Loans, additional interest on such Loan at a rate per annum equal
to the Mandatory Costs Rate calculated in accordance with the formula and in the
manner set forth in Exhibit J hereto.
(b) If and so long as any Lender is required to comply with
reserve assets, liquidity, cash margin or other requirements of any monetary or
other authority (including any such requirement imposed by the European Central
Bank or the European System of Central Banks, but excluding requirements
reflected in the Mandatory Costs Rate) in respect of any of such Lender's LIBOR
Loans in any Committed Foreign Currency, such Lender may require the relevant
Borrower to pay, contemporaneously with each payment of interest on each of such
Lender's LIBOR Loans subject to such requirements, additional interest on such
Loan at a rate per annum specified by such Lender to be the cost to such Lender
of complying with such requirements in relation to such Loan.
(c) Any additional interest owed pursuant to paragraph (a) or
(b) above shall be determined by the relevant Lender, which determination shall
be conclusive absent manifest error, and notified to the relevant Borrower (with
a copy to the Administrative Agent) at least five Business Days before each date
on which interest is payable for the relevant Loan, and such additional interest
so notified to the relevant Borrower by such Lender shall be payable to the
Administrative Agent for the account of such Lender on each date on which
interest is payable for such Loan.
46
SECTION 2.24. Borrowing Subsidiaries. Millennium may designate
any Domestic Subsidiary (and, with the prior written approval of the Required
Lenders, any Foreign Subsidiary) as a Borrowing Subsidiary by delivery to the
Administrative Agent (which shall deliver to each Lender a copy thereof) of a
Borrowing Subsidiary Agreement executed by such Subsidiary, Millennium and
Millennium America, and upon such delivery such Subsidiary shall for all
purposes of this Agreement be a Borrowing Subsidiary until Millennium and
Millennium America shall have executed and delivered to the Administrative Agent
a Borrowing Subsidiary Termination with respect to such Subsidiary, whereupon
such Subsidiary shall cease to be a Borrowing Subsidiary and a party to this
Agreement. Notwithstanding the preceding sentence, no Borrowing Subsidiary
Termination will become effective as to any Borrowing Subsidiary at a time when
any principal of or interest on any Loan to such Borrowing Subsidiary shall be
outstanding hereunder and no Borrowing Subsidiary Termination will in any event
become effective as to Millennium America.
ARTICLE III
Representations and Warranties
As of the Closing Date Millennium, with respect to itself,
each Borrowing Subsidiary and each of its Material Subsidiaries, represents and
warrants to each of the Lenders, in each case as follows:
SECTION 3.01. Organization. It is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has the requisite power and authority to own
its property and assets and to carry on its business as now conducted and is
duly qualified and is in good standing and is authorized to do business in every
jurisdiction where such qualification or authorization is required, except where
the failure so to qualify would not result in a Material Adverse Effect.
SECTION 3.02. Authorization. It has the corporate power and
authority to carry out the Transactions (insofar as they relate to it), and the
Transactions have been duly and validly authorized by all necessary corporate
proceedings on its part.
SECTION 3.03. Absence of Conflicts. The Transactions will not
(a) violate (i) any provision of law, statute, rule or regulation (including
Regulation U or X) or its certificate or articles of incorporation or its
by-laws or (ii) any order of any court, or any law, rule, regulation or order of
any other agency of government binding upon it, (b) be in conflict with, result
in a breach of or constitute (alone or with notice or lapse of time or both) a
material default under any indenture, agreement or other instrument to which it
is a party, or by which it or any of its properties or assets are or may be
bound, or (c) result in or require the creation or imposition of any Lien upon
any of its material property or assets other than to secure Obligations as
provided under the Loan Documents, except to the extent that such conflicts or
Liens would not result in a Material Adverse Effect or otherwise affect in any
material respect the rights or interests of the Lenders under the Loan
Documents.
SECTION 3.04. Governmental Approvals. No registration with or
consent or approval of, or other action by, any Governmental Authority is or
will be required in connection with the Transactions, other than any which have
been made or obtained or the failure to obtain, give, file or take which would
not result in a Material Adverse Effect.
SECTION 3.05. Enforceability. This Agreement constitutes, and
each other Loan Document when executed and delivered by it will constitute, its
legal, valid and binding obligation, enforceable in accordance with the terms
hereof and thereof, except as such
47
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws of general application from time to time affecting
the rights of creditors generally.
SECTION 3.06. Financial Statements. Millennium has heretofore
furnished to the Lenders (a) the audited balance sheet of Millennium and the
Consolidated Subsidiaries as of December 31, 2000, and the related statements of
income, shareholders' equity and cash flows for the Fiscal Year then ended,
reported on by PricewaterhouseCoopers LLP, and (b) the unaudited balance sheet
of Millennium and the Consolidated Subsidiaries as of March 31, 2001, and the
related statements of income, shareholders' equity and cash flows for the Fiscal
Quarter then ended, certified by a Financial Officer of Millennium, and all such
financial statements fairly present, in conformity with GAAP, the consolidated
financial position of Millennium and the Consolidated Subsidiaries as of such
dates and their results of operations and cash flows for such periods.
SECTION 3.07. Material Adverse Effect. Since December 31,
2000, there has not occurred any Material Adverse Effect or, to the best
knowledge of the officers of Millennium or Millennium America, any materially
adverse change in the business, assets, operations or financial condition of
Equistar.
SECTION 3.08. Litigation. There are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now
pending or, to its knowledge, threatened against or affecting it or any of its
Subsidiaries or the businesses, assets or rights of it or any of its
Subsidiaries as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, would, individually or in the
aggregate, result in a Material Adverse Effect.
SECTION 3.09. Compliance with Laws and Agreements. (a) None of
it, any of its Subsidiaries or, to the knowledge of the officers of Millennium
America or Millennium, Equistar, is in violation of any law, or in default with
respect to any judgment, writ, injunction, decree, rule or regulation of any
Governmental Authority, where such violation or default would result in a
Material Adverse Effect.
(b) None of it, any of its Subsidiaries or, to the knowledge
of the officers of Millennium America or Millennium, Equistar, is in default
under any provision of any indenture or other agreement or instrument evidencing
Indebtedness, or any other agreement or instrument to which it is a party or by
which it or any of its properties or assets are or may be bound, which default
would result in a Material Adverse Effect.
SECTION 3.10. Federal Reserve Regulations. (a) Neither it nor
any of its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
(b) No part of the proceeds of the Loans has been or will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose which entails a violation of the provisions of the
Regulations of the Board, including, without limitation, Regulation U or X
thereof. Not more than 25% of the assets subject to the restrictions of Section
6.01 will at any time consist of Margin Stock.
SECTION 3.11. Tax Returns. It, its Subsidiaries and, to the
knowledge of the officers of Millennium America and Millennium, Equistar have
filed or caused to be filed all Federal, state, local and foreign tax returns
which to their knowledge are required to be filed by them or on their behalf,
and have paid or caused to be paid all taxes shown to be due and payable on such
returns or on any assessments received by them, except where the failure to do
so would not result in a Material Adverse Effect.
48
SECTION 3.12. Employee Benefit Plans. (a) It and its ERISA
Affiliates are in compliance in all material respects with those provisions of
ERISA and the regulations and published interpretations thereunder which are
applicable to it, except where noncompliance would not result in a Material
Adverse Effect. No Reportable Event has occurred with respect to any Plan that
would result in a Material Adverse Effect, and no unfunded liabilities exist
under all of the Plans in the aggregate that would result in a Material Adverse
Effect.
(b) Neither it nor any ERISA Affiliate has incurred any
Withdrawal Liability that materially and adversely affects the financial
condition of it and its Subsidiaries taken as a whole or that materially and
adversely impairs its ability to perform its obligations under this Agreement or
any other Loan Document. Neither it nor any ERISA Affiliate has received any
notification that any Multiemployer Plan is in reorganization or has been
terminated within the meaning of Title IV of ERISA, and no Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated, where such
reorganization or termination has resulted or is likely to result in an increase
in the contributions required to be made to such Multiemployer Plan that would
result in a Material Adverse Effect.
SECTION 3.13. No Material Misstatements. No information,
report, financial statement, exhibit or schedule furnished by or on behalf of it
to the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or included herein contained or contains any material
misstatement of fact or omitted or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, it represents only that such information was prepared in good faith
based upon assumptions believed by it to be reasonable at the time.
SECTION 3.14. Investment Company Act; Public Utility Holding
Company Act. Neither it nor any of its Subsidiaries is an "investment company"
as defined in, or is otherwise subject to regulation under, the Investment
Company Act of 1940. Neither it nor any of its Subsidiaries is subject to
regulation as a "holding company" under the Public Utility Holding Company Act
of 1935.
SECTION 3.15. Subsidiaries. At the date hereof, except as set
forth in Schedule 3.15, all the issued and outstanding shares of capital stock
or the partnership or other equity interests, as the case may be, of each of its
Subsidiaries and, to the knowledge of the officers of Millennium and Millennium
America, Equistar have been validly issued and are fully paid and nonassessable
and are owned directly or indirectly by it free and clear of all Liens
whatsoever, and there are no options, warrants, calls, conversion or exchange
rights, commitments or agreements of any character obligating any of the
Subsidiaries to issue, deliver or sell additional shares of capital stock of any
class or any securities convertible into or exchangeable for any such capital
stock or any additional partnership or other equity interests.
SECTION 3.16. Agreements. Neither it nor any of its
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that (a) will have the effect of prohibiting or
restraining, or will impose adverse conditions upon, any of the transactions
contemplated hereby or the payment of dividends or the making of any loans,
investments or transfers by any such Subsidiary to or in it or (b) has resulted
or would result in a Material Adverse Effect.
SECTION 3.17. Environmental and Safety Matters. It and each of
its Subsidiaries has complied in all material respects with all Federal, state,
local and other statutes, ordinances, orders, judgments, rulings and regulations
relating to the environment or to protection of the environment or to employee
health and safety ("Environmental and Safety Laws") except for violations that
either alone or in the aggregate would not result in a Material Adverse Effect.
Neither it nor any of its Subsidiaries manages or handles any hazardous wastes,
hazardous substances, hazardous materials, toxic substances or toxic pollutants
referred to in or regulated by
49
Environmental and Safety Laws, in violation of such Environmental and Safety
Laws where such violation would result, individually or together with other
violations, in a Material Adverse Effect. To the best of its knowledge, neither
it nor any of its Subsidiaries has any liabilities or contingent liabilities
relating to environmental or employee health and safety matters which,
individually or in the aggregate, would result in a Material Adverse Effect.
SECTION 3.18. Security Documents. (a) The Pledge Agreements,
when executed and delivered by the parties thereto, will be effective to create
in favor of the Collateral Agent, for the ratable benefit of the Secured
Parties, legal, valid and enforceable security interests in the Collateral (as
defined in the Pledge Agreements), and when such Collateral is delivered to the
Collateral Agent, the Pledge Agreements will constitute fully perfected first
priority Liens on and security interests in all right, title and interest of
each pledgor thereunder in such Collateral, in each case prior and superior in
right to any other person.
(b) The Security Agreement, when executed and delivered by the
parties thereto, will be effective to create in favor of the Collateral Agent,
for the ratable benefit of the Secured Parties, a legal, valid and enforceable
security interest in the Collateral (as defined in the Security Agreement), and
when financing statements in appropriate form are filed in the appropriate
public offices, the Security Agreement will constitute a fully perfected (to the
extent perfection may be achieved by filings of financing statements or similar
filings in public offices) Lien on and security interest in all right, title and
interest of the grantors thereunder in such Collateral, in each case prior and
superior in right to any other person, other than as to Liens expressly
permitted by Section 6.01.
(c) On the Effective Date, after giving effect to the
Transactions, and on the date of each Credit Event, the Collateral Requirement
will have been satisfied.
SECTION 3.19. Title to Properties. It and each of its
Subsidiaries has good and marketable title to, or valid leasehold interests in,
all its material assets and properties, except for such assets and properties as
are no longer being used or useful in the conduct of its businesses or have been
disposed of in the ordinary course of business and except for defects in title
and exceptions to leasehold interests that either alone or in the aggregate
would not result in a Material Adverse Effect. All such material assets and
properties are free and clear of all mortgages, pledges, liens, charges,
security interests and other encumbrances other than those permitted by Section
6.01.
SECTION 3.20. Labor Matters. The hours worked and payments
made to its employees and the employees of each of its Subsidiaries have not
been in violation in any respect of the Fair Labor Standards Act or any other
applicable law dealing with such matters except for violations that either alone
or in the aggregate would not result in any Material Adverse Effect.
SECTION 3.21. Ranking. The Obligations for which it is liable
as a Borrower or Guarantor will rank equally (except insofar as the Obligations
are secured) with all of its senior, unsecured indebtedness, whether now
existing or hereafter created.
SECTION 3.22. Immunities, Etc. Each Borrowing Subsidiary is
subject to civil and commercial law with respect to its obligations under this
Agreement, and the execution, delivery and performance by such Borrowing
Subsidiary of the applicable Borrowing Subsidiary Agreement and this Agreement
constitute and will constitute private and commercial acts rather than public or
governmental acts. Each Borrowing Subsidiary has validly given its consent to be
sued in respect of its obligations under the Borrowing Subsidiary Agreement and
this Agreement. Each Borrowing Subsidiary has waived every immunity (sovereign
or otherwise) to which it or any of its properties would otherwise be entitled
from any legal action, suit or proceeding, from jurisdiction of any court or
from setoff or any legal process (whether service or notice, attachment prior to
judgment, attachment in aid of execution of judgment, execution of judgment or
50
otherwise) under the laws of the jurisdiction of its incorporation in respect of
its Obligations under the Borrowing Subsidiary Agreement and this Agreement. The
waiver by such Borrowing Subsidiary described in the immediately preceding
sentence is legal, valid and binding on such Borrowing Subsidiary.
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Borrowings. On the date of each Credit
Event, the obligations of the Lenders to make Loans and of the Issuing Banks to
issue, amend, renew or extend Letters of Credit hereunder shall be subject to
the satisfaction of the following conditions:
(a) The Administrative Agent shall have received a notice of
such Credit Event as required by Section 2.03, 2.04 or 2.05 as
applicable.
(b) The representations and warranties set forth in Article
III (except in the case of a Borrowing that does not increase the
aggregate principal amount of Loans of any Lender outstanding) shall be
true and correct in all material respects on and as of the date of such
Credit Event with the same effect as though made on and as of such
date, except to the extent such representations and warranties
expressly relate to an earlier date.
(c) At the time of and immediately after such Credit Event no
Event of Default or Default shall have occurred and be continuing.
(d) The Administrative Agent shall have received a certificate
of a Financial Officer of Millennium certifying and setting forth in
reasonable detail computations demonstrating that after giving effect
to the requested Borrowing, the aggregate amount of the US Dollar
Equivalents of the outstanding Revolving Loans and Swingline Loans will
not exceed the Indenture Basket.
Each Credit Event shall be deemed to constitute a representation and warranty on
the date of such Credit Event as to the matters specified in paragraphs (b), (c)
and (d) above by Millennium and, as to itself only, by any applicable Borrowing
Subsidiary.
SECTION 4.02. First Borrowing. The obligations of the Lenders
to make the initial Loans and of the Issuing Banks to issue the initial Letters
of Credit hereunder shall be subject to the satisfaction of the following
conditions:
(a) The Administrative Agent shall have received a certificate
dated the Effective Date and signed by a Financial Officer of
Millennium America, confirming compliance with the conditions precedent
set forth in paragraphs (b), (c) and (d) of Section 4.01.
(b) The Administrative Agent shall have received for the
benefit of each Lender a signed copy of the favorable written opinion
of (i) C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President--Legal of Millennium America
and counsel for Millennium, (ii) Fried, Frank, Harris, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for Millennium America and Millennium and (iii) local
counsel in each jurisdiction in which any material Foreign Subsidiary
whose Equity Interests are to be pledged under the Pledge Agreements is
located, each dated the Effective Date and addressed to the Lenders and
substantially in the forms set forth in Exhibits C-1, C-2 and C-3
respectively, and satisfactory to Cravath, Swaine & ▇▇▇▇▇, counsel for
the Administrative Agent.
51
(c) The Administrative Agent shall have received (i) a copy of
the certificate or articles of incorporation, as amended through the
Effective Date, of each of Millennium America, Millennium, MICL and the
other Loan Parties, certified by the relevant Secretary of State as of
a recent date; (ii) a certificate of the Secretary or an Assistant
Secretary of each such corporation dated the Effective Date and
certifying (A)(1) that attached thereto is a true and complete copy of
the by-laws of such corporation, as in effect on the date of such
certificate and (2) that the certificate or articles of incorporation
of such corporation have not been amended since the date of the
certification thereto furnished pursuant to clause (i) above and (3) as
to the incumbency and specimen signature of each officer of such
corporation executing this Agreement, the other Loan Documents or any
other instrument or document delivered in connection herewith and a
certification by another officer of such Loan Party as to the
incumbency and signature of the officer signing the certificate
referred to in this clause (ii), and (B) that attached thereto is a
true, correct and complete copy of resolutions duly adopted by the
Board of Directors of such corporation authorizing the execution,
delivery and performance of this Agreement and the other Loan Documents
and the Transactions and that said resolutions have not been amended or
revoked and are in full force and effect on the date of such
certificate; and (iii) such other documents as the Administrative Agent
or Cravath, Swaine & ▇▇▇▇▇, counsel for the Administrative Agent, may
reasonably request.
(d) The Administrative Agent shall have received counterparts
of this Agreement which, when taken together, bear the signatures of
all the parties hereto.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date as
provided in the fee letter agreement dated May 11, 2001, between
Millennium America and the Administrative Agent, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder or any
other Loan Document.
(f) The Administrative Agent shall have received copies of the
Senior Unsecured Note Indenture, certified by a Financial Officer as
complete and correct.
(g) The issuance and sale of the Senior Unsecured Notes shall
have been, or shall simultaneously with the initial borrowing under
this Agreement be, completed and Millennium America shall have received
gross cash proceeds of not less than $200,000,000 therefrom.
(h) The Collateral Requirement shall have been satisfied and
the Administrative Agent shall have received a completed Perfection
Certificate dated the Effective Date and signed by a Financial Officer
of Millennium America, together with all attachments contemplated
thereby, including the results of a search of the UCC (or equivalent)
filings made with respect to the Loan Parties in the jurisdictions
contemplated by the Perfection Certificate and copies of the financing
statements (or similar documents) disclosed by such search and evidence
reasonably satisfactory to the Administrative Agent that the Liens
indicated by such financing statements (or similar documents) are
permitted by Section 6.01 or have been released.
(i) All legal matters incidental to this Agreement and the
borrowings hereunder shall be satisfactory to the Lenders and to
Cravath, Swaine & ▇▇▇▇▇, counsel for the Administrative Agent.
(j) The commitments of the lenders under the Existing Credit
Agreement shall have been terminated and the principal of and interest
on all loans and all other obligations accrued or owing thereunder
shall have been, or shall simultaneously with the initial Credit Event
hereunder be, paid in full.
52
SECTION 4.03. Credit Events in Respect of Each Borrowing
Subsidiary. The obligations of the Lenders to make the initial Loans to or for
the account of each Borrowing Subsidiary (other than Millennium America and
MICL) are subject to the satisfaction of the following additional conditions:
(a) The Administrative Agent shall have received a copy of a
Borrowing Subsidiary Agreement executed by such Borrowing Subsidiary,
Millennium, Millennium America and the Administrative Agent.
(b) The Administrative Agent shall have received, on behalf of
itself and the Lenders, a favorable written opinion of counsel for such
Borrowing Subsidiary (which counsel shall be reasonably acceptable to
the Administrative Agent), in form and substance satisfactory to the
Administrative Agent, (A) dated the date of the applicable Borrowing
Subsidiary Agreement, (B) addressed to the Administrative Agent and the
Lenders, and (C) covering such other matters as the Administrative
Agent shall reasonably request.
(c) All legal matters incidental to this Agreement, the
Borrowings and extensions of credit hereunder and the other Loan
Documents shall be reasonably satisfactory to the Lenders and to
Cravath, Swaine & ▇▇▇▇▇, counsel for the Administrative Agent.
(d) The Administrative Agent shall have received (i) a copy of
the certificate or articles of incorporation, including all amendments
thereto, of such Borrowing Subsidiary, certified by the Secretary of
State of the state of its organization as of a recent date (or similar
documentation with respect to any foreign Borrowing Subsidiary); (ii) a
certificate of the Secretary or an Assistant Secretary of such
Borrowing Subsidiary dated the date of the applicable Borrowing
Subsidiary Agreement and certifying (A) that attached thereto is a true
and complete copy of the by-laws of such Borrowing Subsidiary as in
effect on the date of such Agreement and at all times since a date
prior to the date of the resolutions of such Borrowing Subsidiary
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors (or
the appropriate duly authorized committee thereof), of such Borrowing
Subsidiary authorizing the execution, delivery and performance of such
Borrowing Subsidiary Agreement and all other Loan Documents to which
such Borrowing Subsidiary is a party and the borrowings hereunder by
such Borrowing Subsidiary, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (C)
that the certificate or articles of incorporation (or similar
documentation with respect to any foreign Borrowing Subsidiary) of such
Borrowing Subsidiary have not been amended since the date of
certification thereto furnished pursuant to clause (i) above, and (D)
as to the incumbency and specimen signature of each officer of such
Borrowing Subsidiary executing such Borrowing Subsidiary Agreement, any
other Loan Document or any other document delivered in connection
herewith or therewith; and (iii) such other documents as the
Administrative Agent or Cravath, Swaine & ▇▇▇▇▇, counsel for the
Administrative Agent, may reasonably request.
(e) The Administrative Agent shall have received a
certificate, dated the date of the applicable Borrowing Subsidiary
Agreement and signed by a Financial Officer of Millennium, confirming
(i) that the representations and warranties set forth in Article III
are true and correct in all material respects on the date of such
Borrowing Subsidiary Agreement and (ii) compliance with the conditions
precedent set forth in paragraphs (c) and (d) of Section 4.01.
53
ARTICLE V
Affirmative Covenants
Millennium covenants and agrees with each Lender that, so long
as this Agreement shall remain in effect or the principal of or interest on any
Loan, any Fees, any reimbursement obligations in respect of LC Disbursements or
any other expenses or amounts payable hereunder shall be unpaid, unless the
Required Lenders shall otherwise consent in writing, it will, and will cause
each of the Borrowing Subsidiaries and each other Material Subsidiary to:
SECTION 5.01. Corporate Existence. Do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence, except as otherwise permitted by Section 6.05.
SECTION 5.02. Businesses and Properties. Except as otherwise
permitted by Section 6.05, at all times (a) do or cause to be done all things
necessary to preserve, renew and keep in full force and effect the rights,
licenses, permits, franchises, patents, copyrights, trademarks and trade names
material to the conduct of its business; and (b) maintain, preserve and protect
all property material to the conduct of such business.
SECTION 5.03. Insurance. (a) Keep its insurable properties
adequately insured at all times by financially sound and reputable insurers, (b)
maintain such other insurance, to such extent and against such risks, as is
customary with companies similarly situated and in the same or similar business,
and (c) maintain in full force and effect public liability insurance against
claims for personal injury or death or property damage occurring upon, in, about
or in connection with the use of any properties owned, occupied or controlled by
it in such amount as it shall reasonably deem necessary; provided, however, that
nothing in this Section shall preclude Millennium or any Subsidiary from being
self-insured (to the extent customary with companies similarly situated in the
same or similar business).
SECTION 5.04. Taxes. Pay and discharge promptly when due all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or in respect of its property before the same shall become
delinquent or in default, as well as all lawful claims for labor, materials and
supplies or otherwise, which, if unpaid, might give rise to liens or charges
upon such properties or any part thereof, unless and to the extent that any such
tax, assessment, charge, levy or claim is being contested in good faith by
appropriate proceedings and adequate reserves are being maintained with respect
thereto in accordance with GAAP.
SECTION 5.05. Financial Statements, Reports, etc. With respect
to Millennium, furnish to each of the Lenders:
(a) Within 95 days after the end of each Fiscal Year of
Millennium, audited financial statements (which shall include a balance sheet
and income statement, as well as statements of stockholders' equity and cash
flows) showing the financial condition and results of operations of Millennium
and its Consolidated Subsidiaries as of the end of and for such fiscal year,
reported on by independent public accountants of recognized standing acceptable
to the Required Lenders and in a form reasonably acceptable to the Required
Lenders.
(b) Within 55 days after the end of each of the first three
Fiscal Quarters of each Fiscal Year of Millennium, unaudited financial
statements (which shall include a balance sheet and income statement, as well as
statements of stockholders' equity and cash flow) showing the financial
condition and results of operations of Millennium and its Consolidated
Subsidiaries as of the end of and for such fiscal quarter, certified by the
chief financial officer of Millennium as presenting fairly the financial
position and results of operations of Millennium and its
54
Consolidated Subsidiaries and as having been prepared in accordance with GAAP,
subject to normal year-end adjustments.
(c) Promptly after the same shall have been filed or furnished
as described below, copies of such registration statements (other than
registration statements on Form S-8 or any similar or successor form), annual,
periodic and other reports and proxy statements, as shall be filed by
Millennium, any Borrower or any Subsidiary with the SEC pursuant to the
requirements of the Securities Act of 1933 or the Securities Exchange Act of
1934 or the rules promulgated thereunder.
(d) Concurrently with (a) and (b) above, a certificate of a
Financial Officer of Millennium (i) certifying compliance, as of the dates of
the financial statements being furnished at such time and for the periods then
ended, with the covenants set forth in Sections 6.01, 6.02 and 6.03,
demonstrating, in reasonable detail, compliance with the covenants set forth in
Sections 6.11 and 6.12 and setting forth, as of the dates of the financial
statements, the computation of Consolidated Net Tangible Assets (as defined in
the Indenture), (ii) certifying that to the best knowledge of such Financial
Officer no Event of Default or Default has occurred or, if an Event of Default
or Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto, (iii)
setting forth any change since the date hereof, or the last date such a
certificate was delivered, in the information set forth on Schedule 3.15 and
(iv) describing any applicable material change in GAAP reflected in such
financial statements and not reflected in any financial statements previously
delivered and setting forth in reasonable detail the results thereof.
(e) Promptly upon receipt, copies of all financial or other
information concerning Equistar that has been publicly filed by Equistar with
the Securities and Exchange Commission or another Governmental Authority.
(f) Promptly, from time to time, such other information
regarding this Agreement, the other Loan Documents or the affairs, operations or
condition (financial or otherwise) of Millennium, any Borrower or Subsidiary or
Equistar as any Lender may reasonably request and which is susceptible of being
obtained, produced or generated by any of them or of which any of them has
knowledge.
SECTION 5.06. Litigation and Other Notices. Give each Lender
prompt written notice upon learning of the following:
(a) the issuance by any Governmental Authority of any
injunction, order, decision or other restraint prohibiting, or having
the effect of prohibiting, the making of the Loans, or having the
effect of invalidating any provision of this Agreement or any other
Loan Document or the initiation of any litigation or similar proceeding
seeking any such injunction, order, decision or other restraint;
(b) the filing or commencement of any action, suit or
proceeding against Millennium or any Borrower or Subsidiary, whether at
law or in equity or by or before any Governmental Authority or any
arbitrator, as to which action, suit or proceeding there is a
reasonable possibility of an adverse determination and which, if
determined adversely to Millennium or any Borrower or Subsidiary, would
result in a Material Adverse Effect; and
(c) any Event of Default or Default, specifying the nature and
extent thereof and the action (if any) which is proposed to be taken
with respect thereto.
SECTION 5.07. ERISA. (a) Comply in all material respects with
the applicable provisions of ERISA, except where noncompliance would not result
in a Material Adverse Effect,
55
and (b) furnish to the Administrative Agent and each Lender as soon as possible,
and in any event within 30 days after any Responsible Officer (other than any
assistant secretary or assistant treasurer) of Millennium or Millennium America
obtains knowledge thereof, (i) a statement of a Financial Officer setting forth
details as to any Reportable Event that has occurred that alone or together with
any other Reportable Event could reasonably be expected to result in liability
of Millennium, any Borrower or any Subsidiary to the PBGC in an aggregate amount
exceeding $20,000,000 and the action proposed to be taken with respect thereto,
together with a copy of the notice, if any, of such Reportable Event given to
the PBGC, (ii) a copy of any notice that Millennium, any Borrower or any
Subsidiary may receive from the PBGC relating to the intention of the PBGC to
terminate any Plan or Plans (other than a Plan maintained by an ERISA Affiliate
that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414 of the Code) or to appoint a trustee to administer any Plan or
Plans, (iii) a statement of a Financial Officer setting forth details as to any
failure to make a required installment or other payment with respect to a Plan
and the action proposed to be taken with respect thereto, together with a copy
of any notice of such failure given to the PBGC, and (iv) a copy of each notice
received from the sponsor of a Multiemployer Plan concerning (A) the imposition
of any Withdrawal Liability in an amount exceeding $10,000,000 or (B) a
determination that a Multiemployer Plan is, or is expected to be, terminated or
in reorganization, both within the meaning of Title IV of ERISA, which, in each
case, is expected to result in an increase in annual contributions of
Millennium, any Borrower or any Subsidiary to such Multiemployer Plan in an
amount exceeding $5,000,000.
SECTION 5.08. Access to Premises and Records. Maintain
financial records in accordance with GAAP, and upon reasonable notice permit
representatives of the Lenders to have access to such financial records and the
premises of Millennium, any Borrower or any Subsidiary at reasonable times and
to make such excerpts from such records as such representatives deem necessary
in connection with their evaluation of the ability of Millennium and the
Borrower to repay the Loans and perform their other obligations under the Loan
Documents. Each Lender agrees to keep all information obtained by it pursuant to
this Section confidential except to the extent that (i) disclosure of such
information has been requested by any bank regulatory authority to which it is
subject or counsel for such Lender advises that disclosure of such information
should be made pursuant to applicable law, regulations, subpoena, judicial
process or the like to which it is subject or to its counsel or auditors or in
any legal proceeding arising out of this Agreement or any other Loan Document,
(ii) such information is or becomes publicly available other than by such
Lender's breach of this Section, (iii) such information becomes available to
such Lender from a third party which, by making such information available, has
not breached, to such Lender's knowledge, any obligation of confidentiality it
may owe or (iv) such information is made available by such Lender to any of its
Affiliates or to any permitted assignees or transferees that need to know such
information in connection with this Agreement or any other Loan Document and
agree to be bound by the confidentiality provisions of this Section and to use
such information only in connection with this Agreement and the other Loan
Documents.
SECTION 5.09. Use of Proceeds and Letters of Credit. Use the
proceeds of Borrowings and Letters of Credit only for the purposes set forth in
the preamble to this Agreement.
SECTION 5.10. Covenants Relating to Collateral. (a) Millennium
will, and will cause each Subsidiary (other than any Subsidiary not required to
do so under the definition of "Collateral Requirement") to, execute any and all
further documents, financing statements, agreements and instruments, and take
all such further actions (including the filing and recording of financing
statements and other documents), which may be required under any applicable law,
or which the Administrative Agent, the Collateral Agent or the Required Lenders
may reasonably request, to cause the Collateral Requirement to be and remain
satisfied at all times, all at the expense of the Loan Parties. Millennium also
agrees to provide to the Administrative Agent from
56
time to time upon request evidence reasonably satisfactory to the Administrative
Agent as to the perfection and priority of the Liens created or intended to be
created by the Security Documents.
(b) Millennium will furnish to the Administrative Agent prompt
written notice of any change (i) in any Loan Party's corporate name or in any
trade name used to identify it in the conduct of its business or in the
ownership of its properties, (ii) in the location of any Loan Party's chief
executive office, its principal place of business, any office in which it
maintains books or records relating to Collateral owned by it or any office or
facility at which Collateral owned by it is located (including the establishment
of any such new office or facility), (iii) in any Loan Party's identity or
corporate structure or (iv) in any Loan Party's Federal Taxpayer Identification
Number. Millennium agrees not to effect or permit any change referred to in the
preceding sentence unless all filings under the UCC or otherwise that are
required in order for the Administrative Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral have been made (or, in the case of any change in the location
of any office in which a Loan Party maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located, are made within 30 days after such change). Millennium also agrees
promptly to notify the Administrative Agent if any material portion of the
Collateral is damaged or destroyed.
(c) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.01, Millennium shall deliver to the Administrative Agent a certificate
of a Financial Officer and the chief legal officer of Millennium (i) setting
forth the information required pursuant to the Perfection Certificate or
confirming that there has been no change in such information since the date of
the Perfection Certificate delivered on the Effective Date or the date of the
most recent certificate delivered pursuant to this Section and (ii) certifying
that all UCC financing statements or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations, have
been filed of record in each governmental, municipal or other appropriate office
in each jurisdiction identified pursuant to clause (i) above to the extent
necessary to protect and perfect the security interests under the Security
Documents for a period of not less than 12 months after the date of such
certificate (except as noted therein with respect to any continuation statements
to be filed within such period).
SECTION 5.11. Compliance with Laws. Comply with all applicable
laws, rules and regulations, and all orders of any Governmental Authority
applicable to it or any of its property, business, operations or transactions to
the extent noncompliance (i) would result in (i) a Material Adverse Effect or
(ii) could reasonably be expected to result in a Default or an Event of Default.
SECTION 5.12. Environmental Compliance. Comply with all
Environmental and Safety Laws, except where the failure so to comply would not
result in a Material Adverse Effect, and provide prompt written notice to the
Lenders following the receipt of any notice of any violation of any
Environmental and Safety Laws from any Federal, state or local Governmental
Authority charged with enforcing such Environmental and Safety Laws which would
result in a Material Adverse Effect.
ARTICLE VI
Negative Covenants
Millennium covenants and agrees with each Lender that, so long
as this Agreement shall remain in effect or the principal of or interest on any
Loan, any Fees, any reimbursement obligations in respect of LC Disbursements or
any other expenses or amounts payable hereunder shall be unpaid, unless the
Required Lenders shall otherwise consent in
57
writing, it will not and will not cause or permit any of the Borrowing
Subsidiaries or other Subsidiaries, either directly or indirectly, to:
SECTION 6.01. Liens. Incur, create, assume or permit to exist
any Lien on any of its property or assets, whether owned at the date hereof or
hereafter acquired, or assign or convey any rights to or security interests in
any future revenues, except:
(a) Liens created under the Security Documents.
(b) Liens incurred and pledges and deposits made in the
ordinary course of business in connection with workmen's compensation,
disability or unemployment insurance, old-age pensions, retiree health
benefits and other social security benefits;
(c) Liens securing the performance of bids, tenders, leases,
contracts (other than for the repayment of borrowed money), statutory
obligations, surety, customs and appeal bonds and other obligations of
a like nature, incurred as an incident to and in the ordinary course of
business;
(d) Liens imposed by law, such as carriers', warehousemen's,
mechanics', materialmen's and vendors' liens, incurred in good faith in
the ordinary course of business and securing obligations which are not
yet due or which are being contested in good faith by appropriate
proceedings as to which Millennium America, Millennium or a Subsidiary,
as the case may be, shall have, to the extent required by GAAP, set
aside on its books adequate reserves;
(e) Liens securing the payment of taxes, assessments and
governmental charges or levies, either (i) not delinquent or (ii) being
contested in good faith by appropriate legal or administrative
proceedings and as to which Millennium America, Millennium or a
Subsidiary, as the case may be, shall have, to the extent required by
GAAP, set aside on its books adequate reserves;
(f) (i) zoning restrictions, easements, licenses,
reservations, provisions, covenants, conditions, waivers, restrictions
on the use of property or minor irregularities of title (and with
respect to leasehold interests, mortgages, obligations, liens and other
encumbrances incurred, created, assumed or permitted to exist and
arising by, through or under a landlord or owner of the leased
property, with or without consent of the lessee) and (ii) licenses or
leases of patents, copyrights, trademarks, tradenames and other
intellectual property, which do not in the aggregate materially detract
from the value of its property or assets or materially impair the use
thereof in the operation of its business;
(g) Liens upon any real property, plant and equipment
acquired, constructed or improved by Millennium America, Millennium or
any Subsidiary which are created or incurred within 185 days of such
acquisition, construction or improvement to secure or provide for the
payment of any part of the purchase price of such property or the cost
of such construction or improvement, including carrying costs (but no
other amounts); provided that any such Lien shall not apply to any
other property of Millennium America, Millennium or any Subsidiary;
(h) Liens on property existing at the time such property is
acquired by Millennium America, Millennium or a Subsidiary or on
property of any person at the time such person becomes a Subsidiary;
provided that such Liens were not created in contemplation of the
acquisition by Millennium America, Millennium or such Subsidiary of
such property or of such person becoming a Subsidiary;
58
(i) Liens on the property or assets of any Subsidiary of
Millennium America or Millennium, as the case may be, in favor of
Millennium America, Millennium or any other Subsidiary;
(j) Liens on accounts receivable deemed to arise in connection
with any Securitization Transaction not prohibited by any other
provision of this Agreement;
(k) extensions, renewals and replacements of Liens referred to
in clauses (a) through (i) above; provided that any such extension,
renewal or replacement Lien shall be limited to the property or assets
covered by the Lien extended, renewed or replaced and that the
obligations secured by any such extension, renewal or replacement Lien
shall be in an amount not greater than the amount of the obligations
secured by the Lien extended, renewed or replaced;
(l) attachment or judgment Liens not giving rise to a Default
or Event of Default and which are being contested in good faith by
appropriate proceedings;
(m) leases or subleases granted to others that do not
materially interfere with the ordinary course of business of Millennium
America, Millennium and their respective Subsidiaries;
(n) any option, contract or other agreement to sell an asset;
provided such sale is not otherwise prohibited hereunder;
(o) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection
with the importation of goods;
(p) Liens on assets (other than Collateral) securing up to
US$50,000,000 of permitted obligations of Millennium and the
Subsidiaries; provided, that the incurrence of such secured
Indebtedness does not reduce the amount of the Indenture Basket;
(q) Liens on assets of Foreign Subsidiaries securing
Indebtedness permitted under Section 6.03(e) and Sections 6.08(a)(iv)
and (v); and
(r) Liens, if any, that are deemed to exist pursuant
to (i) any first offer obligation of Millennium or right of first
refusal of the partners of Equistar as provided for in the Equistar
Limited Partnership Agreement and the Equistar Parent Agreement, or
(ii) any first offer obligation of Millennium or right of first refusal
of the partners of La Porte as provided for in the La Porte Methanol
Limited Partnership Agreement and the LaPorte Parent Agreement;
provided that none of the foregoing exceptions shall permit Millennium America,
Millennium or any Material Subsidiary to incur, create, assume or permit to
exist any consensual Lien on the capital stock owned by it of any Subsidiary.
SECTION 6.02. Sale and Leaseback Transactions. Enter into any
arrangement, directly or indirectly, with any person (other than Millennium or a
Subsidiary) whereby it shall sell or transfer any property, real or personal,
and used or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which it intends to use
for substantially the same purpose or purposes as the property being sold or
transferred, without the consent of the Required Lenders, except sale and
leaseback transactions in an amount not to exceed $50,000,000; provided, that
the consideration received for the sale of such assets is at least equal to the
then-current fair market value of such assets. For purposes of the foregoing,
the value of each such sale and leaseback transaction shall (except as
Millennium and the Required Lenders shall otherwise agree) be deemed to be (a)
the price at which the
59
property pertaining thereto is sold or transferred to the lessor thereof or (b)
(if higher than (a) and if the relevant lease or leases represent Capitalized
Lease Obligations) the balance sheet value of such lease or leases.
SECTION 6.03. Subsidiary Indebtedness and Preferred Stock. In
the case of the Subsidiaries (other than Millennium America), incur, create,
assume, issue or permit to exist any Indebtedness or Preferred Stock, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness or Preferred Stock of any Subsidiary issued
to or held by Millennium or any other Subsidiary;
(c) Indebtedness consisting of reimbursement obligations in
respect of the Designated Letters of Credit;
(d) other Indebtedness of Domestic Subsidiaries in an
aggregate principal amount not to exceed US$50,000,000 minus the
aggregate amount of all Indebtedness of Millennium and Millennium
America secured by Liens permitted by Section 6.01(p); and
(e) other Indebtedness of Foreign Subsidiaries (which shall
not be guaranteed by Millennium America, any other Borrowing Subsidiary
or any Domestic Subsidiary) in an amount at any time not to exceed
$100,000,000 minus the aggregate amount outstanding under
Securitization Transactions at such time.
SECTION 6.04. Domestic Account Receivable Securitization
Transactions. Sell, pledge, hypothecate or otherwise transfer accounts
receivable of Millennium, Millennium America or any other Domestic Subsidiary.
SECTION 6.05. Consolidations, Mergers, Sales of Assets. (a)
Consolidate with or merge into any other person, or permit another person to
merge into it, except that, so long as at the time thereof and immediately after
giving effect thereto no Event of Default or Default has occurred and is
continuing, any Subsidiary (other than Millennium America, Millennium GP or
Millennium LP) may be merged, liquidated or dissolved into Millennium America or
another wholly owned Subsidiary (except that no Domestic Subsidiary shall be
merged into or consolidated with a Foreign Subsidiary).
(b) Sell, lease, transfer or assign to any person or otherwise
dispose of (whether in one transaction or a series of transactions) assets
representing all or substantially all the assets of Millennium and its
Subsidiaries taken as a whole (whether now owned or hereafter acquired).
(c) Sell, lease, transfer or assign to any person (other than
to Millennium or a Subsidiary) or otherwise dispose of assets (other than loans
or exchanges of inventory, spare parts and equipment in the ordinary course of
business), whether now owned or hereafter acquired, other than for consideration
at least 75% of which consists of cash or cash equivalents, except that in the
event all the Equity Interests in Equistar owned directly or indirectly by
Millennium shall be sold, a portion of the consideration for such sale may
consist of an assumption by the purchaser of the obligations of Millennium
America under the Equistar Guarantee. For purposes of this Section 6.05(c), cash
shall be deemed to include securities received by Millennium or any Restricted
Subsidiary (as defined in the Indenture) from the transferee that are converted,
sold or exchanged within 30 days of receipt by Millennium or such Restricted
Subsidiary into cash to the extent of the cash received.
(d) In the case of Millennium or any Domestic Subsidiary, sell
or transfer any assets (other than (i) sales or transfers in the ordinary course
of business and (ii) other sales and
60
transfers of assets with an aggregate fair market value for all such sales and
transfers not to exceed US$2,000,000 annually) or any Equity Interests in any
Subsidiary or in Equistar, to any Foreign Subsidiary or subsidiary of a Foreign
Subsidiary.
SECTION 6.06. Transactions with Affiliates. Sell or transfer
any assets to, or purchase or acquire any assets of, or otherwise engage in any
material transaction with, any Affiliate except upon fair and reasonable terms
no less favorable to it than it could obtain or could become entitled to in an
arm's-length transaction with a person that was not an Affiliate; provided that
this Section shall not apply to (a) transactions between Millennium America or
Millennium and any wholly owned Subsidiary or between wholly owned Subsidiaries,
(b) sales, pledges, hypothecations or other transfers, dispositions or Liens on
accounts receivable of any Foreign Subsidiary, in each case to or in favor of
any special purpose entity that is an Affiliate, in connection with any
Securitization Transaction, (c) any issuance of securities, or other payments,
awards or grants in cash, securities or otherwise pursuant to, or the funding
of, employment arrangements, stock options, stock ownership and other incentive
compensation plans approved by the Board of Directors of Millennium or (d) the
payment of reasonable fees to, and indemnity provided on behalf of, directors,
officers and employees of Millennium and its Subsidiaries. Notwithstanding any
of the foregoing, for purposes of this Section 6.06 only, Equistar shall not be
considered an Affiliate of Millennium.
SECTION 6.07. Limitation on Dividends and Distributions;
Certain Payments of Indebtedness. (a) In the case of Millennium, declare or pay,
directly or indirectly, any dividend (except, so long as no Default or Event of
Default shall have occurred and be continuing at the time of the declaration
thereof, quarterly cash dividends in per share amounts, appropriately adjusted
for stock splits and dividends and similar events, not greater than those paid
by Millennium during its fiscal year ended December 31, 2000) or make any other
distribution (by reduction of capital or otherwise), whether in cash, property,
securities or a combination thereof, with respect to any shares of its capital
stock or directly or indirectly redeem, purchase, retire or otherwise acquire
for value (or permit any Subsidiary to purchase or acquire) any shares of any
class of its capital stock or set aside any amount for any such purpose, except
for purchases from employees of shares issued under Millennium's employee
incentive plans.
(b) Make or agree to make, directly or indirectly, any payment
or other distribution (whether in cash, securities or other property) of or in
respect of principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any Indebtedness, except:
(i) the payment or prepayment of Indebtedness under the Loan
Documents;
(ii) scheduled or mandatory interest and principal payments as
and when due in respect of any Indebtedness, other than payments in
respect of any Indebtedness subordinated in right of payment to the
Obligations to the extent prohibited by the subordination provisions of
such Indebtedness;
(iii) so long as no Default or Event of Default shall have
occurred and be continuing, voluntary prepayments or redemptions of any
Indebtedness, other than Indebtedness subordinated in right of payment
to the Obligations; and
(iv) payment of secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets
securing such Indebtedness, to the extent such sale or transfer is
permitted hereunder.
SECTION 6.08. Dividend Restrictions Affecting Subsidiaries.
Create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction
61
on the ability of any Subsidiary to (a) pay dividends or make any other
distribution on its capital stock to Millennium America or Millennium, or (b)
pay any Indebtedness owed to Millennium America or Millennium, as the case may
be, or a Subsidiary, except (i) any encumbrance or restriction with respect to a
Subsidiary that is not a Subsidiary on the date hereof in existence at the time
such person becomes a Subsidiary and not incurred in connection with, or in
contemplation of, such person becoming a Subsidiary, (ii) restrictions on the
ability of DR Insurance Company to pay dividends or make distributions under the
Plan of Voluntary Liquidation and Dissolution of DR Insurance Company dated as
of December 12, 2000, (iii) restrictions under the La Porte Methanol Limited
Partnership Agreement, (iv) restrictions on the ability of KIC Ltd. to pay
dividends and distribute its surplus assets under the Certificates of Interest
in Surplus Assets dated on or about June 30, 1993, (v) any encumbrance or
restriction existing under or by reason of indebtedness or other contractual
requirements of a Receivables Entity in connection with a Qualified Receivables
Transaction; provided that such restrictions apply only to such Receivables
Entity, (vi) encumbrances existing under the Senior Unsecured Notes Indenture
and the Senior Unsecured Notes and (vii) encumbrances or restrictions existing
under or by reason of provisions with respect to the disposition or distribution
of assets or property in joint venture agreements and other similar agreements
entered into in the ordinary course of business, so long as such encumbrances or
restrictions are not applicable to any Person (or its property or assets) other
than such joint venture or a subsidiary thereof.
SECTION 6.09. Maintenance of Borrowing Subsidiaries as
Subsidiaries. Permit any Borrowing Subsidiary to cease to be a Subsidiary;
provided that this Section shall not prohibit any merger of a Borrowing
Subsidiary (other than Millennium America) into Millennium or Millennium
America.
SECTION 6.10. Equistar Guarantee. (a) Permit the principal
amount guaranteed under the Equistar Guarantee at any time to exceed
US$750,000,000.
(b) Permit the terms and conditions of the Equistar Guarantee
to be modified without the consent of the Required Lenders; provided that (i)
the Equistar Guarantee may be terminated or released without the consent of the
Required Lenders and (ii) the Equistar Guarantee may be amended to be a
Guarantee in favor of Equistar or the Equistar partners rather than a Guarantee
in favor of the lenders under the Equistar Credit Agreement; provided that the
Equistar Guarantee shall remain a guarantee of collection on terms (including
the conditions required to be satisfied before any claim may be made by the
beneficiaries thereof) not less favorable to Millennium America or its
subsidiaries than those in effect on the date hereof.
(c) Enter into or permit to exist any Guarantee of obligations
of Equistar other than the Equistar Guarantee.
SECTION 6.11. Leverage Ratio. Permit the Leverage Ratio of
Millennium and its Subsidiaries on a consolidated basis on the last day of any
fiscal quarter ending during any period set forth below to be in excess of the
ratio set forth below opposite such period:
Period Ratio
------------------------------------------------- ---------------------------
June 30, 2001 through December 31, 2001 5.00 to 1.00
------------------------------------------------- ---------------------------
January 1, 2002 through December 31, 2002 4.75 to 1.00
------------------------------------------------- ---------------------------
January 1, 2003 through December 31, 2003 4.25 to 1.00
------------------------------------------------- ---------------------------
January 1, 2004 and thereafter 4.00 to 1.00
------------------------------------------------- ---------------------------
SECTION 6.12. Interest Coverage Ratio. Permit the Interest
Coverage Ratio of Millennium and its Subsidiaries for any period of four
consecutive fiscal quarters ending during a period set forth below to be less
than the ratio set forth opposite such period below:
62
Period Ratio
-------------------------------------------------- --------------------------
June 30, 2001 through December 31, 2001 2.25 to 1.00
-------------------------------------------------- --------------------------
January 1, 2002 through December 31, 2002 2.50 to 1.00
-------------------------------------------------- --------------------------
January 1, 2003 through December 31, 2003 2.75 to 1.00
-------------------------------------------------- --------------------------
January 1, 2004 and thereafter 3.00 to 1.00
-------------------------------------------------- --------------------------
ARTICLE VII
Events of Default
In case of the happening of any of the following events
(herein called "Events of Default"):
(a) any representation or warranty made or deemed made in or
in connection with any Loan Document or the Borrowings hereunder or
under any Borrowing Subsidiary Agreement or any representation,
warranty or statement made or deemed made in any report, certificate,
financial statement or other instrument or agreement furnished in
connection with any Loan Document or in connection with the Borrowings
hereunder shall prove to have been false or misleading in any material
respect when made or deemed made;
(b) default shall be made in the payment of 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 by
acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on
any Loan or any Fee or any other amount under this Agreement when and
as the same shall become due and payable, and such default shall
continue for a period of three Business Days;
(d) (i) default shall be made in the due observance or
performance of any covenant, condition or agreement contained in
Section 5.01, 5.06 or 5.09 or in Article VI; (ii) default shall be made
in the due observance or performance of any covenant, condition or
agreement contained in Section 5.05, which default referred to in this
clause (ii) shall continue for a period of five days or (iii) default
shall be made in the due observance or performance of any other
covenant, condition or agreement to be observed or performed on the
part of Millennium, any Borrower or any Subsidiary pursuant to the
terms of any Loan Document, which default referred to in this clause
(iii) shall continue for a period of 30 days after notice thereof from
the Administrative Agent or the Required Lenders to the applicable
Borrower;
(e) Millennium, any Borrower or any Material Subsidiary shall
(i) voluntarily commence any proceeding or file any petition seeking
relief under Title 11 of the United States Code or any other Federal or
state bankruptcy, insolvency, liquidation or similar law, (ii) consent
to the institution of, or fail to contravene in a timely and
appropriate manner, any such proceeding or the filing of any such
petition, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator or similar official for Millennium,
any Borrower or any Material Subsidiary or for a substantial part of
its property or assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) become
unable, admit in writing its inability or fail generally to pay its
debts as they become due or (vii) take corporate action for the purpose
of effecting any of the foregoing;
63
(f) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of Millennium, any Borrower
or any Material Subsidiary or of a substantial part of the property or
assets of Millennium, any Borrower or any Material Subsidiary, under
Title 11 of the United States Code or any other Federal or state
bankruptcy, insolvency, receivership or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator or similar
official for Millennium, any Borrower or any Material Subsidiary or for
a substantial part of the property or assets of Millennium, any
Borrower or any Material Subsidiary or (iii) the winding up or
liquidation of Millennium, any Borrower or any Material Subsidiary; and
such proceeding or petition shall continue undismissed for 60 days or
an order or decree approving or ordering any of the foregoing shall
continue unstayed and in effect for 30 days;
(g)(i) default shall be made or another event shall occur with
respect to any Indebtedness of Millennium, any Borrower or any
Subsidiary if the effect of any such default or other event shall be to
accelerate, or to permit the holder or obligee of any Indebtedness (or
any trustee on behalf of such holder or obligee) to accelerate (with or
without the giving of notice or lapse of time or both), such
Indebtedness in an aggregate amount in excess of $50,000,000 (provided,
however, that a default (other than a payment default) under any
Indebtedness of a person existing at the time such person (other than
Millennium America or a Subsidiary existing on the Closing Date)
becomes a Subsidiary (and not incurred in connection with, or in
contemplation of, such person becoming a Subsidiary) ("Acquired
Indebtedness") that would otherwise constitute a Default under this
clause (g)(i) arising out of such person's becoming a Subsidiary shall
not constitute an Event of Default under this clause (g)(i) unless and
until (x) the earlier of (A) the date 180 days after such person shall
have become a Subsidiary and (B) the date any holder of the Acquired
Indebtedness, or any representative acting on behalf of such holder,
shall exercise any remedies available to such holder as a result of
such default and (y) such default shall not have been cured (whether by
payment or otherwise) by the earlier of the expiration of such 180-day
period or the date five Business Days after any acceleration in respect
of such default); or (ii) any amount of principal of or interest on any
Indebtedness of Millennium, any Borrower or any Subsidiary in an
aggregate principal amount in excess of $50,000,000 shall not be paid
when due, whether at maturity, by acceleration or otherwise (after
giving effect to any period of grace specified in the instrument
evidencing or governing such Indebtedness); or (iii) without limiting
the rights of the Lenders under clauses (g)(i) and (g)(ii) above,
Millennium, any Borrower or any Subsidiary shall default in the payment
of principal of any Indebtedness, which principal, individually or in
the aggregate with other defaulted principal, shall be in excess of
$15,000,000, when due and payable (after giving effect to any period of
grace specified in the instrument evidencing or governing such
Indebtedness), or the principal of such Indebtedness in excess of
$15,000,000 shall be declared due and payable prior to the date on
which it would otherwise be due and payable and such acceleration shall
not have been rescinded or annulled, or such accelerated Indebtedness
shall not have been discharged, within five Business Days of such
acceleration;
(h) (A) a Reportable Event or Reportable Events, or a failure
to make a required payment (within the meaning of Section 412(n)(1) of
the Code), shall have occurred with respect to any Plan or Plans that
reasonably could be expected to result in a Material Adverse Effect
and, within 30 days after the reporting of any such Reportable Event to
the Administrative Agent or after the receipt by the Administrative
Agent of the statement required pursuant to Section 5.07, the
Administrative Agent shall have notified the applicable Borrower in
writing that (i) the Required Lenders have made a determination that,
on the basis of such Reportable Event or Reportable Events or failure
to make a required payment, there are reasonable grounds for the
termination of such Plan or Plans by the PBGC, for the appointment by
the appropriate United States District
64
Court of a trustee to administer such Plan or Plans or for the
imposition of a lien in favor of a Plan and (ii) as a result thereof
an Event of Default exists hereunder; or (B) a trustee shall be
appointed by a United States District Court to administer any such
Plan or Plans or the PBGC shall institute proceedings to terminate any
Plan or Plans and such appointment or termination proceedings could
reasonably be expected to result in a Material Adverse Effect;
(i) (i) Millennium, any Borrower or any ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan, (ii)
Millennium, such Borrower or such ERISA Affiliate does not have
reasonable grounds for contesting such Withdrawal Liability or is not,
in fact, contesting such Withdrawal Liability in a timely and
appropriate manner and (iii) the amount of the Withdrawal Liability
specified in such notice, when aggregated with all other amounts
required to be paid by Millennium, such Borrower and its ERISA
Affiliates to Multiemployer Plans in connection with Withdrawal
Liabilities (determined as of the date or dates of such notification),
exceeds $20,000,000 or requires payments exceeding $10,000,000 in any
year;
(j) Millennium, any Borrower or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, if solely as a result of such
reorganization or termination the aggregate annual contributions of
Millennium, any Borrower and its ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or have been or are being
terminated have been or will be increased over the amounts required to
be contributed to such Multiemployer Plans for their most recently
completed plan years by an amount exceeding $10,000,000;
(k) one or more judgments for the payment of money (not
reimbursed by insurance policies of Millennium, any Borrower or any
Subsidiary) in excess of $20,000,000 in the aggregate shall be rendered
by a court or other tribunal against Millennium, any Borrower or any
Subsidiary and shall remain undischarged for a period of 30 consecutive
days during which the execution of such judgments shall not have been
stayed effectively or any action shall be legally taken by a judgment
creditor to levy upon assets or properties of Millennium, any Borrower
or any Subsidiary to enforce any such judgment;
(l) Millennium shall cease to own directly or indirectly 100%
of the then- outstanding voting stock of Millennium America (except
upon a merger of Millennium America and Millennium), in each case free
and clear of any Liens (other than as permitted by Section 6.01);
(m) there shall have occurred a Change of Control;
(n) the guarantee of Millennium or Millennium America, as the
case may be hereunder shall not be (or shall be claimed by any Loan
Party not to be) valid and in full force and effect; or
(o) any Lien purported to be created under any Security
Document with respect to any material portion of the Collateral shall
cease to be, or shall be asserted by any Loan Party not to be, a valid
and perfected Lien on such Collateral, with the priority required by
the applicable Security Document, except (i) as a result of the sale or
other disposition of the applicable Collateral in a transaction
permitted under the Loan Documents, (ii) as a result of the Collateral
Agent's failure to maintain possession of any stock certificates,
promissory notes or other instruments delivered to it under the
Collateral Agreement or (iii) as provided in Section 10.14.
65
then, and in any such event (other than an event with respect to Millennium or
any Borrower described in paragraph (e) or (f) above), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
or at the written direction of the Required Lenders shall, by written or
telecopied notice to Millennium America, take either or both of the following
actions, at the same or different times: (i) terminate forthwith the
Commitments, (ii) declare the Loans then outstanding to be forthwith due and
payable, whereupon the principal of the Loans so declared due and payable,
together with accrued interest and any unpaid accrued Fees and all other
liabilities of the Borrowers accrued hereunder, shall become forthwith due and
payable both as to principal and interest, without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived by
Millennium and each Borrower, anything contained herein to the contrary
notwithstanding and (iii) exercise such other remedies as shall be available to
it under any of the Loan Documents; provided, however, that, in the event of a
default with respect to Millennium or any Borrower described in paragraph (e) or
(f) above, the Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrowers accrued
hereunder, shall automatically become due and payable, without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived
by Millennium and each Borrower, anything contained herein to the contrary
notwithstanding.
ARTICLE VIII
Agents
Each of the Lenders irrevocably authorizes each Agent to take
such action on its behalf and to exercise such powers hereunder as are
specifically delegated to such Agent by the terms hereof and of the other Loan
Documents, together with such powers as are reasonably incidental thereto. Each
Agent may perform any and all its duties and exercise its rights and powers by
or through any one or more sub-agents selected and appointed by such Agent. Each
Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through Affiliates or its or its Affiliates' employees. The
exculpatory provisions of the following paragraphs shall apply to any such
sub-agent, to the Affiliates of each Agent and any such sub-agent and to the
directors, officers and employees of each Agent, any such sub-agent and their
respective Affiliates.
The Administrative Agent is hereby expressly authorized and
directed by the Lenders, without hereby limiting any implied authority, (a) to
receive on behalf of the Lenders all payments of principal of and interest on
the Loans and all other amounts due to the Lenders hereunder, and promptly to
distribute to each Lender its proper share of each payment so received; (b) to
give notice on behalf of each of the Lenders to the Borrowers of any Event of
Default specified in this Agreement of which the Administrative Agent has actual
knowledge acquired in connection with its agency hereunder; and (c) to
distribute to each Lender copies of all notices, financial statements and other
materials delivered by any Borrower pursuant to this Agreement.
Neither Agent, and none of their respective directors,
officers, employees or agents, shall be liable as such for any action taken or
omitted to be taken by it or them hereunder or in connection herewith (a) at the
request or with the approval of the Required Lenders (or, if otherwise
specifically required hereunder, the consent of all the Lenders) or (b) in the
absence of its or their own gross negligence or wilful misconduct. Each Lender
acknowledges that it has decided to enter into this Agreement and to extend the
Loans hereunder based on its own analysis of the creditworthiness of the
Borrowers and agrees that neither Agent shall bear any responsibility for such
creditworthiness.
66
Neither Agent shall be responsible in any manner to any of the
Lenders for the effectiveness, enforceability, genuineness, validity or due
execution of any Loan Document or any other agreements or certificates,
requests, financial statements, notices or opinions of counsel or for any
recitals, statements, warranties or representations contained herein or in any
such instrument or be under any obligation to ascertain or inquire as to the
performance or observance of any of the terms, provisions, covenants,
conditions, agreements or obligations of this Agreement or any other agreements
on the part of any Borrower or other Loan Party and, without limiting the
generality of the foregoing, each Agent shall, in the absence of knowledge to
the contrary, be entitled to accept any certificate furnished pursuant to any
Loan Document as conclusive evidence of the facts stated therein and shall be
entitled to rely on any note, notice, consent, certificate, affidavit, letter,
telegram, teletype or telecopy message, statement, order or other document which
it reasonably believes to be genuine and correct and to have been signed or sent
by the proper person or persons. It is understood and agreed that each Agent may
exercise its rights and powers under other agreements and instruments to which
it is or may be a party and engage in other transactions with Millennium, any
Subsidiary or any Affiliate of the foregoing as though it were not the agent of
the Lenders hereunder.
Each Agent may consult with legal counsel selected by it in
connection with matters arising under this Agreement and any action taken or
suffered in good faith by it in accordance with the opinion of such counsel
shall be full justification and protection to it. Each Agent may exercise any of
its powers and rights and perform any duty under this Agreement through agents,
bailees or attorneys.
The Lenders shall, ratably in accordance with the amounts of
their outstanding Term Loans, Revolving Exposures and unused Commitments at the
time of demand for indemnification hereunder by either Agent, indemnify such
Agent, in its capacity as agent on behalf of the Lenders (to the extent not
reimbursed by the Borrowers pursuant to the terms hereof and without limiting
the obligations of the Borrowers to do so) against any cost, expense (including
reasonable counsel fees and disbursements), claim, demand, action, loss or
liability (except such as results from such Agent's gross negligence or wilful
misconduct) that such Agent may suffer or incur in connection with this
Agreement or any action taken or omitted by such Agent hereunder. For purposes
of this paragraph, each reference to an Agent shall be deemed to include the
Swingline Lender and each Issuing Bank.
Subject to the appointment and acceptance of a successor Agent
as provided below, either Agent may resign at any time by notifying the Lenders
and Millennium. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor Agent. If no successor Agent shall have been so
appointed and shall have accepted such appointment within 30 days after the
retiring Agent gives notice of resignation, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent which shall be a bank having an
office (or an Affiliate with an office) in New York, New York, with a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
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. After any Agent's resignation hereunder, the provisions
of this Article shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Agent.
The Lenders hereby acknowledge that no Agent shall be under
any duty to take any discretionary action permitted to be taken by it pursuant
to the provisions of this Agreement unless it shall be requested in writing to
do so by the Required Lenders or, where required, all the Lenders.
67
The Lender identified on the cover page of this Agreement as
"Syndication Agent" shall have no duties or responsibilities under this
Agreement other than those applicable to it as a Lender.
ARTICLE IX
Guarantee
In order to induce the Lenders to extend credit hereunder,
each Guarantor hereby irrevocably and unconditionally guarantees, jointly with
the other Guarantor and severally, as a primary obligor and not merely as a
surety, the Obligations. Each Guarantor further agrees that the Obligations may
be extended or renewed, in whole or in part, without notice to or further assent
from, and that it will remain bound upon its Guarantee hereunder notwithstanding
any such extension or renewal of any Obligation.
Each Guarantor waives presentment to, demand of payment from
and protest to any Borrower or the other Guarantor of any of the Obligations,
and also waives notice of acceptance of its obligations and notice of protest
for nonpayment. The obligations of each Guarantor hereunder shall not be
affected by (a) the failure of any Lender or the Administrative Agent to assert
any claim or demand or to enforce any right or remedy against any Borrower or
the other Guarantor under the provisions of this Agreement or any of the other
Loan Documents or otherwise; (b) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Agreement, any of the
other Loan Documents or any other agreement; or (c) the failure of any Lender to
exercise any right or remedy against any Borrower or the other Guarantor.
Each Guarantor further agrees that its agreement hereunder
constitutes a promise of payment when due (whether or not any bankruptcy or
similar proceeding shall have stayed the accrual or collection of any of the
Obligations or operated as a discharge thereof) and not merely of collection,
and waives any right to require that any resort be had by any Lender to any
balance of any deposit account or credit on the books of any Lender in favor of
any Borrower, the other Guarantor or any other person.
The obligations of each Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
and shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever, by reason of the invalidity, illegality or
unenforceability of the Obligations, any impossibility in the performance of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Administrative Agent or any Lender to
assert any claim or demand or to enforce any remedy under this Agreement or
under any other Loan Document or any other agreement, by any waiver or
modification in respect of any thereof, by any default, failure or delay, wilful
or otherwise, in the performance of the Obligations, or by any other act or
omission which may or might in any manner or to any extent vary the risk of such
Guarantor or otherwise operate as a discharge of such Guarantor or any Borrower
as a matter of law or equity.
Each Guarantor further agrees that its obligations hereunder
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by the Administrative Agent or Lender upon the bankruptcy
or reorganization of any Borrower or the other Guarantor or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which the Administrative Agent or any Lender may have at law or in
equity against either Guarantor by virtue hereof, upon the failure of any
Borrower to pay any Obligation when and as the same shall
68
become due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, each Guarantor hereby promises to and will, upon receipt of written
demand by the Administrative Agent, forthwith pay, or cause to be paid, in cash
the amount of such unpaid Obligation. Each Guarantor further agrees that if
payment in respect of any Obligation shall be due in a currency other than US
Dollars and/or at a place of payment other than New York and if, by reason of
any Change in Law, disruption of currency or foreign exchange markets, war or
civil disturbance or similar event, payment of such Obligation in such currency
or at such place of payment shall be impossible or, in the judgment of the
Administrative Agent or Lender, not consistent with the protection of its rights
or interests, then, at the election of any applicable Lender, such Guarantor
shall make payment of such Obligation in US Dollars (based upon the applicable
Exchange Rate in effect on the date of payment) and/or in New York, and shall
indemnify such Lender against any losses or expenses that it shall sustain as a
result of such alternative payment.
Upon payment by either Guarantor of any Obligations, each
Lender shall, in a reasonable manner, assign the amount of the Obligations owed
to it and so paid to such Guarantor, such assignment to be in the amount of such
payment of the claim and to the extent to which the Obligations in question were
discharged by such Guarantor, or make such disposition thereof as such Guarantor
shall direct (all without recourse to any Lender and without any representation
or warranty by any Lender).
Upon payment by either Guarantor of any sums as provided
above, all rights of such Guarantor against any Borrower arising as a result
thereof by way of right of subrogation or otherwise shall in all respects be
subordinated and junior in right of payment to the prior indefeasible payment in
full of all the Obligations to the Lenders.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except as specifically provided
elsewhere herein, notices and other communications provided for herein shall be
in writing and shall be delivered, mailed or sent by e-mail or telecopy
addressed:
(a) if to Millennium America or Millennium, in all cases to it
at
Millennium Chemicals Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
e-mail: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CFO
with a copy to
Millennium Chemicals Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
e-mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention of C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
(b) if to the Administrative Agent, in all cases to it at
69
The Chase Manhattan Bank
Loan and Agency Services Group
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
e-mail: ▇▇▇▇▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇.▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Re: Millennium America Inc.
with a copy to
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
e-mail: ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Re: Millennium America Inc.
(c) if to any Issuing Bank, in all cases to it at (i) in the
case of Chase, the address of the Administrative Agent set forth above,
and (ii) in the case of any other Issuing Bank, the address set forth
in the Issuing Bank Agreement executed by such Issuing Bank;
(d) if to the Swingline Lender, in all cases to it at the
address of the Administrative Agent set forth above;
(e) if to any Lender, in all cases to it at its address as set
forth in Schedule 10.01 or as it shall subsequently specify in writing
to Millennium and the Administrative Agent.
Each Borrowing Subsidiary hereby irrevocably appoints
Millennium as its agent for the purpose of giving on its behalf any notice and
taking any other action provided for in this Agreement and hereby agrees that it
shall be bound by any such notice or action given or taken by Millennium
hereunder or thereunder irrespective of whether or not any such notice shall
have in fact been authorized by such Borrowing Subsidiary and irrespective of
whether or not the agency provided for herein or therein shall have theretofore
been terminated.
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 if delivered by hand or overnight courier service
or sent by e-mail or telecopy equipment of the sender, or on the date five
Business Days after dispatch by certified or registered mail if mailed, in each
case delivered, sent, mailed or e-mailed (properly addressed) to such party as
provided in this Section 10.01 or in accordance with the latest unrevoked
direction from such party given in accordance with this Section 10.01. Copies of
all notices delivered to the Administrative Agent (other than any notice
relating solely to the Administrative Agent) hereunder shall be delivered to the
applicable Lenders by such Administrative Agent.
SECTION 10.02. No Waivers; Amendments. (a) No failure or delay
of the Administrative Agent or Lender in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any
70
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the
Lenders hereunder are cumulative and not exclusive of any rights or remedies
which they would otherwise have. Except as may be otherwise expressly provided
herein, no waiver of any provision of this Agreement nor any consent to any
departure by any Borrower or Millennium therefrom shall in any event be
effective unless the same shall be in writing and signed by the Required Lenders
or by the Administrative Agent on behalf of the Required Lenders (unless
otherwise specified herein), and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. No notice or
demand on any Borrower or Millennium in any case shall entitle such Borrower or
Millennium to any other or further notice or demand in similar or other
circumstances.
(b) None of this Agreement, any other Loan Document or any
exhibit or schedule hereto or thereto may be amended or modified except pursuant
to an agreement or agreements in writing entered into by the Borrowers and
Millennium and by the Required Lenders; provided, however, that no such
agreement shall (i) change the principal amount or currency of, or extend or
advance the maturity of or any date for the payment of any scheduled installment
of principal of or interest on, any Loan or LC Disbursement, or the amount or
any date for the payment of any Fee, or waive or excuse any such payment or any
part thereof, or reduce the rate of interest on any Loan, or reduce any Fee,
without the written consent of each Lender affected thereby, (ii) change any
Commitment of any Lender without the prior written consent of such Lender, (iii)
change Sections 2.18 or 2.19 in a manner that would alter the pro rata sharing
of payments required thereby without the written consent of each Lender, (iv)
amend or modify or otherwise affect the rights or duties of the Administrative
Agent, the Swingline Lender or any Issuing Bank without the prior written
consent of the Administrative Agent, the Swingline Lender or such Issuing Bank,
respectively, (v) release the guarantee by Millennium or Millennium America of
the Obligations without the written consent of each Lender, (vi) release a
material portion of the Collateral from the Liens of the Security Documents
without the written consent of each Lender except as expressly provided in
Section 10.14, or (vii) amend or modify the definition of "Required Lenders",
Section 2.19 Article IX, this Section 10.02 or Section 10.06 without the prior
written consent of each Lender; provided further that the consent of a majority
in interest of the Lenders with Loans or Commitments of any Class will be
required with respect to amendments or waivers that by their terms adversely
affect the rights of such Lenders in a manner different from that in which they
affect Lenders with Loans or Commitments of any other Class. Any amendment or
modification effected in accordance with this paragraph will be binding on each
Borrowing Subsidiary whether or not such Borrowing Subsidiary shall have
consented thereto.
SECTION 10.03. Governing Law; Submission to Jurisdiction. (a)
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
(b) Each of the Borrowers and Millennium irrevocably submits
to the nonexclusive jurisdiction of any New York State or Federal court sitting
in the Borough of Manhattan, The City of New York, over any suit, action or
proceeding arising out of or relating to this Agreement or any other document
contemplated hereby, irrevocably waives and agrees not to assert, by way of
motion, as a defense or otherwise, any claim that it is not subject to the
jurisdiction of any such court, any objection that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding brought in any
such court and any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum.
(c) Each of the Borrowers and Millennium agrees, to the
fullest extent it may effectively do so under applicable law, that a judgment in
any suit, action or proceeding of the nature referred to in paragraph (b) above
brought in any such court shall be conclusive and
71
binding upon Millennium or such Borrower and may be enforced in the courts of
the United States of America or the State of New York (or any other courts to
the jurisdiction of which Millennium or such Borrower is or may be subject) by a
suit upon such judgment.
(d) Each of the Borrowers and Millennium consents to process
being served in any suit, action or proceeding of the nature referred to in
paragraph (b) by mailing a copy thereof by registered or certified mail, postage
prepaid, return receipt requested, to the address of Millennium or such
Borrower, as the case may be, set forth or referred to in Section 10.01. Each of
the Borrowers and Millennium agrees that such service (i) shall be deemed in
every respect effective service of process upon Millennium or such Borrower, as
the case may be, in any such suit, action or proceeding and (ii) shall, to the
fullest extent permitted by law, be taken and held to be valid personal service
upon and personal delivery to Millennium or such Borrower, as the case may be.
(e) Nothing in this Section shall affect the right of the
Administrative Agent or Lender to serve process in any manner permitted by law,
or limit any right that the Administrative Agent or Lender may have to bring
proceedings against Millennium or any Borrower in the courts of any jurisdiction
or to enforce in any lawful manner a judgment obtained in one jurisdiction in
any other jurisdiction.
(f) Each Borrowing Subsidiary 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 or
the other Loan Documents in any New York State or Federal court. Each Borrowing
Subsidiary 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.
(g) To the extent that any Borrowing Subsidiary has or
hereafter may acquire any immunity (sovereign or otherwise) from any legal
action, suit or proceeding, from jurisdiction of any court or from set-off or
any legal process (whether service or notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise)
with respect to itself or any of its property, such Borrowing Subsidiary hereby
irrevocably waives and agrees not to plead or claim such immunity in respect of
its Obligations under its Borrowing Subsidiary Agreement and this Agreement.
(h) Each Borrowing Subsidiary hereby agrees that the waivers
set forth in this Section shall have the fullest extent permitted under the
Foreign Sovereign Immunities Act of 1976 of the United States of America and are
intended to be irrevocable and not subject to withdrawal for purposes of such
Act.
SECTION 10.04. Expenses; Indemnity. (a) Millennium America
agrees to pay all reasonable out-of-pocket expenses incurred by the Agents, the
Syndication Agent, the Swingline Lenders, each Issuing Bank and the Lenders, as
the case may be, in connection with (i) the syndication of the facilities
established by this Agreement and the preparation, execution and delivery of
this Agreement and the other Loan Documents (whether or not the transactions
hereby or thereby contemplated shall be consummated), (ii) the making of the
Loans hereunder, the issuance, amendment, renewal or extension of any Letter of
Credit or any demand for payment thereunder, the enforcement of the rights of
the Lenders or the Agents in connection with this Agreement and the other Loan
Documents and the protection of the rights of the Lenders thereunder, including
in any workouts or similar negotiations, (iii) any action which may be
instituted by any person against the Lenders or the Agents in respect of the
foregoing or as a result of any transaction, action or nonaction arising from
the foregoing and (iv) the preparation of any amendments to or waivers of this
Agreement and the other Loan Documents, including, in the case of (i), (ii),
(iii) and (iv), the reasonable fees, disbursements and other charges of Cravath,
72
Swaine & ▇▇▇▇▇, counsel for the Agents, and, in the case of (iii) above,
separate counsel for each Lender which, based on the opinion of its counsel, has
legal defenses available to it which are different from or in addition to those
available to another Lender; provided, however, that in no event shall
Millennium America be liable for such fees, disbursements or other charges of
more than one counsel for all similarly situated Lenders. Millennium America
agrees to indemnify the Agents, the Syndication Agent, the Swingline Lender, the
Issuing Banks, the Lenders and their respective Affiliates from and hold them
harmless against any documentary taxes, assessments or similar charges made by
any Governmental Authority by reason of the execution and delivery of this
Agreement or any other Loan Document. Millennium America agrees to pay all
reasonable out-of-pocket expenses (including reasonable counsel fees, charges
and expenses, which shall include the reasonable and non-duplicative allocated
costs of internal counsel) and liabilities including those resulting from any
litigation or other proceedings (regardless of whether any such person is a
party thereto) incurred by any Lender or Agent, the Syndication Agent, the
Swingline Lender or any Issuing Bank in connection with the enforcement of its
rights under this Agreement or any other Loan Document or with the Loans made or
the Letters of Credit issued hereunder or thereunder; provided that no such
person will be indemnified for its gross negligence or wilful misconduct. The
obligations of the Borrowers under this Section shall survive the termination of
this Agreement or any other Loan Document and/or the payment of the Loans.
(b) Millennium America agrees to indemnify each Lender, the
Agents, the Syndication Agent, the Swingline Lender, each Issuing Bank, each
Affiliate of any of the foregoing and their respective directors, officers,
employees, trustees, investment advisors, agents and controlling persons (each
such person being called an "Indemnitee") against, and to hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including counsel fees and expenses, incurred by or asserted against
such Indemnitee arising out of, in any way in connection with, or as a result
of, (i) this Agreement or any of the other documents contemplated hereby, the
performance by the parties hereto and thereto of their respective obligations
hereunder and thereunder and consummation of the transactions contemplated
hereby and thereby, (ii) any actual or alleged presence or release of hazardous
materials or other environmental, health and safety matters relating to
Millennium or any of its Subsidiaries or any of their current or former
properties or (iii) any claim, litigation, investigation or proceeding relating
to any of the foregoing, whether or not such Indemnitee is a party thereto;
provided, however, that such indemnity shall not, as to any Indemnitee, apply to
any such losses, claims, damages, liabilities or related expenses arising from
the gross negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement, or any investigation made by or on behalf of the
Lenders or the Agents. All amounts due under this Section shall be payable on
written demand therefor.
SECTION 10.05. Survival of Agreements, Representations and
Warranties, etc. All warranties, representations and covenants made by the
Borrowers and Millennium herein or in any certificate or other instrument
delivered by the Borrowers or Millennium or on their behalf in connection with
this Agreement shall be considered to have been relied upon by the Lenders and
shall survive the making of the Loans herein contemplated regardless of any
investigation made by the Lenders or on their behalf and shall continue in full
force and effect so long as any amount due or to become due hereunder is
outstanding and unpaid. All statements in any such certificate or other
instrument shall constitute representations and warranties by the Borrowers and
Millennium, severally and not jointly, hereunder. The right of each Lender to
receive payments pursuant to Sections 2.15, 2.17, 2.21, 2.23, 10.04 and 10.13
shall survive the termination of this Agreement and the repayment of the Loans.
73
SECTION 10.06. Successors and Assigns. (a) This Agreement
shall be binding upon and inure to the benefit of the Borrowers, the Lenders,
the Issuing Banks (including any Affiliate of any Issuing Bank that issues any
Letter of Credit), the Administrative Agent, the Syndication Agent and their
respective successors and assigns. Neither Millennium nor any Borrower may
assign or transfer any of its rights or obligations hereunder without the prior
written consent of all the Lenders.
(b) Each Lender may assign all or a portion of its interests,
rights and obligations under this Agreement (including all or a portion of its
Commitments (and the Loans at the time owing to it)); provided, however, that
(i) except in the case of an assignment by a Lender to a Lender Affiliate of
such Lender or to another Lender and so long as no Event of Default has occurred
and is continuing, Millennium America (and, in the case of an assignment of a
Revolving Commitment), the Swingline Lender and each Issuing Bank must consent
to such assignment in writing (which consent may not be unreasonably withheld or
delayed), (ii) except in the case of an assignment to another Lender or Lender
Affiliate or in the case of an assignment of the assigning Lender's total
Revolving Commitment, the aggregate amount of the Commitments of the assigning
Lender subject to any such assignment shall not be less than $2,000,000 (or any
other smaller amount agreed upon by the Administrative Agent and Millennium),
and (iii) the parties to each such assignment shall execute and deliver to the
Administrative Agent for its acceptance and recording in the Register an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500 (with only one such fee payable in connection with simultaneous
assignments by a Lender to Lender Affiliates). Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be (unless waived by the
Administrative Agent) at least five Business Days after the execution thereof,
(A) the assignee thereunder shall be a party hereto, and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and (B) the assignor thereunder
shall, to the extent of the interest assigned by such Assignment and Acceptance,
be released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of the
assignor's rights and obligations under this Agreement, the assignor shall cease
to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.17, 2.21, 2.23, 10.04 and 10.13 as well as to any interest and
Fees accrued for its account hereunder and not yet paid).
(c) By executing and delivering an Assignment and Acceptance,
the assignor and the assignee thereunder shall be deemed to confirm to and agree
with each other and the Borrowers as follows: (i) such assignor warrants that it
is the legal and beneficial owner of the interest being assigned free and clear
of any adverse claim; (ii) except as set forth in clause (i) above, the assignor
makes no other representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or any other instrument or document furnished
pursuant hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, or any
other instrument or document furnished pursuant hereto or thereto, or the
financial condition of Millennium or any Borrower or the performance or
observance by Millennium or any Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto or
thereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements described in Section 3.06 or the most recent financial
statements delivered pursuant to Section 5.05, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the assignor and based on
such documents and information as it shall deem appropriate at the time continue
to make its own credit decisions in taking or not taking action under this
Agreement; (vi) such assignee appoints and authorizes the Administrative Agent
to take such actions as agents on its behalf and to exercise such powers
74
under this Agreement, as are delegated to the Administrative Agent by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will, to the extent of the interest assigned
to it, perform in accordance with their terms all the obligations which by the
terms of this Agreement are required to be performed by the Lenders.
(d) Each Borrower and Millennium agrees that each Lender may
without the consent of such Borrower or Millennium sell participations to one or
more banks or other entities in all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Term Commitment or Revolving Commitment and the same portion of the Term Loans
or Revolving Loans owing to it) and each Borrower agrees that any purchaser of a
participation in such Loans so acquired may exercise any and all rights of
banker's lien, setoff, counterclaim or otherwise with respect to any and all
moneys owing by any Borrower to such purchaser as fully as if such purchaser
were a Lender acquiring such Loans hereunder in the amount of such
participation; provided, however, that (i) such selling Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the applicable Borrowers for the performance of its
obligations hereunder, (iii) the participating lenders or other entities shall
be entitled to the benefit of the cost protection provisions contained in
Sections 2.15, 2.17, 2.21, 2.23, 10.04 and 10.13 to the same extent as if they
were such Lender; provided that a participant shall not be entitled to receive
any greater payment under Section 2.21 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 Millennium's prior written consent and (iv) the Borrowers shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, and such Lender shall retain the
sole right to enforce the obligations of Millennium or the applicable Borrower
relating to the Loans and to approve, without the consent of or consultation
with any participant, any amendment, modification or waiver of any provision of
this Agreement (other than amendments, modifications or waivers with respect to
fees payable hereunder or an increase in the amount of principal of or a
decrease in the rate at which interest is payable on the Loans, or an extension
of the dates fixed for payments of principal of or interest on the Loans or
payments of fees).
(e) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section,
disclose to the assignee or participant or proposed assignee or participant any
information relating to Millennium, the Borrowers or the Subsidiaries furnished
to the Lenders (including pursuant to Section 5.08) by or on behalf of
Millennium, the Borrowers or the Subsidiaries, as applicable; provided that,
prior to any such disclosure, each such assignee or participant or proposed
assignee or participant shall execute an agreement whereby such assignee or
participant shall agree (subject to customary exceptions) to preserve the
confidentiality of any confidential information relating to Millennium, any
Borrower or any Subsidiary received from the Lenders.
(f) The Administrative Agent shall maintain at one of its
offices in The City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of
the Lenders, the Commitments of, and principal amounts of the Loans owing to,
each Lender and the participating interest of each Lender in any Letter of
Credit pursuant to the terms hereof (the "Register"). The entries in the
Register shall be conclusive in the absence of manifest error. No assignment of
Commitments or Loans hereunder shall be effective until recorded in the
Register, and the Borrowers, the Administrative Agent and the Lenders may treat
each person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by Millennium and the Borrowers at any reasonable time
and from time to time upon reasonable prior notice.
(g) (i) Any Lender may at any time assign all or any portion
of its rights under this Agreement to a Federal Reserve
75
Bank to secure extensions of credit by such Federal Reserve Bank to such Lender
or (ii) any Lender which is a fund may pledge all or any portion of its Loans to
its trustee in support of its obligations to its trustee; provided that no such
assignment or pledge under (i) or (ii) above shall release a Lender from any of
its obligations hereunder or substitute any such Federal Reserve Bank or trustee
for such Lender as a party hereto.
SECTION 10.07. Right of Setoff. (a) Upon the occurrence and
during the continuation of any Event of Default each Lender is hereby
authorized, in addition to any other right or remedy that any Lender may have by
operation of law or otherwise, at any time and from time to time, without notice
to Millennium or the applicable Borrower (any such notice being expressly waived
by Millennium or such Borrower), to exercise its banker's lien or right of
setoff and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Lender or any of its Affiliates to or for the credit or the account of
Millennium or the applicable Borrower against any and all the obligations of
Millennium or the applicable Borrower, now or hereafter existing under this
Agreement, irrespective of whether or not such Lender shall have made any demand
under this Agreement and although such obligations may be unmatured.
(b) Each Lender agrees promptly to notify the Administrative
Agent and Millennium or the applicable Borrower after any such setoff and
application; provided, however, that the failure to give any such notice shall
not affect the validity of such setoff and application.
(c) Upon the insolvency or bankruptcy of any Lender, the
applicable Borrower is hereby authorized, in addition to any other right or
remedy that it may have by operation of law or otherwise, at any time and from
time to time, to exercise a right of setoff and apply any and all amounts due
and owing it from such Lender to or for the account of such Borrower against
amounts due from such Borrower to such Lender. Any such setoffs may be made only
against payments due to such insolvent or bankrupt Lender, when and as the same
become due, and no setoff may be made against any amount due and payable to any
other Lender. No Borrower may exercise any right of setoff with respect to all
or any portion of deposits which are insured by the Federal Deposit Insurance
Corporation.
SECTION 10.08. Severability. In case any one or more of the
provisions contained in this Agreement shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 10.09. Cover Page, Table of Contents and Section
Headings. The cover page, Table of Contents and section headings used herein are
for convenience of reference only, are not part of this Agreement and are not to
affect the construction of or be taken into consideration in interpreting this
Agreement.
SECTION 10.10. Counterparts; Effectiveness. This Agreement may
be signed in any number of counterparts with the same effect as if the
signatures thereon and hereon were upon the same instrument. This Agreement
shall become effective when copies hereof which, when taken together, bear the
signatures of each of the parties hereto shall have been received by the
Administrative Agent.
SECTION 10.11. 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 RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
76
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 10.12. Entire Agreement. This Agreement, the other
Loan Documents, any agreements with respect to Issuing Bank Fees as contemplated
by Section 2.08(b)(ii) and the fee letter agreement referred to in Section
2.08(c) constitute the entire contract between the parties relative to the
subject matter hereof. Any previous agreement among the parties with respect to
the subject matter hereof is superseded by this Agreement, the other Loan
Documents and such Letter agreements. Nothing in this Agreement, the other Loan
Documents or such letter agreements expressed or implied, is intended to confer
upon any party other than the parties hereto and thereto and Indemnities
referred to in Section 10.04(b) any rights, remedies, obligations or liabilities
under or by reason of this Agreement, the other Loan Documents.
SECTION 10.13. 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 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 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; and if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section shall survive the termination of this Agreement and
the payment of all other amounts owing hereunder.
SECTION 10.14. Release of Liens. (a) Notwithstanding any
contrary provision herein or in any other Loan Document, if Millennium shall
request the release under any Security Document of any Collateral to be sold or
otherwise disposed of to a person other than Millennium or a Subsidiary in a
transaction permitted under the terms of this Agreement (or any Collateral owned
by a Subsidiary all the Equity Interests in or assets of which are to be so sold
or disposed of in a transaction so permitted) and shall deliver to the
Collateral Agent a certificate to the effect that such sale of other disposition
and the application of the proceeds thereof will comply with the terms of this
Agreement, the Collateral Agent, if satisfied that the applicable certificate is
correct, shall, without the consent of any Lender, execute and deliver all such
instruments, releases, financing statements or other agreements, and take all
such further actions, as shall be necessary to effectuate the release of such
Collateral substantially simultaneously with or at any time after the completion
of such sale or other disposition.
(b) The Collateral Agent is hereby authorized and directed to take such
actions as are reasonably requested by Millennium to terminate the Liens and
security interests created by the Security Documents when all the Obligations
have been paid in full, all Letters of Credit have been drawn in full or have
expired and all the Commitments have been terminated.
77
(c) Without limiting the provisions of ▇▇▇▇▇▇▇ ▇▇.▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ shall reimburse the Administrative Agent, the Collateral Agent and the
Lenders for all costs and expenses, including attorney's fees and disbursements,
incurred by any of them in connection with any action contemplated by this
Section 10.14.
78
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their duly authorized officers as of the day
and year first above written.
MILLENNIUM AMERICA INC.,
by
------------------------------------
Name:
Title:
MILLENNIUM INORGANIC CHEMICALS
LIMITED,
by
------------------------------------
Name:
Title:
MILLENNIUM CHEMICALS INC.,
by
------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
individually, as Administrative Agent and as
Collateral Agent,
by
------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
individually and as Syndication Agent,
by
------------------------------------
Name:
Title:
[OTHER LENDERS]