EXHIBIT 2
CONFORMED COPY
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364-DAY CREDIT AGREEMENT
dated as of
June 29, 2001
among
CONOCO INC.
The Borrowing Subsidiaries Party Hereto
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK
as Administrative Agent
BANK OF AMERICA, N.A.,
CITIBANK, N.A.,
DEUTSCHE BANK AG NEW YORK BRANCH
and
THE ROYAL BANK OF SCOTLAND PLC,
as Co-Syndication Agents
CREDIT SUISSE FIRST BOSTON,
as Managing Agent
---------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Advisor, Lead Arranger and Sole Bookrunner
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[CS&M #6701-207]
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms.................................................1
SECTION 1.02. Classification of Loans and Borrowings. .....................17
SECTION 1.03. Terms Generally..............................................17
SECTION 1.04. Accounting Terms; GAAP.......................................18
SECTION 1.05. Certain Determinations by Agent
and Lenders.................................................18
SECTION 1.06. Exchange Rates...............................................18
SECTION 1.07. Redenomination of Certain Foreign Currencies.................19
ARTICLE II
The Credits
SECTION 2.01. Commitments..................................................19
SECTION 2.02. Loans and Borrowings.........................................19
SECTION 2.03. Requests for Revolving Borrowings............................20
SECTION 2.04. Funding of Borrowings........................................21
SECTION 2.05. Interest Elections...........................................22
SECTION 2.06. Termination and Reduction of Commitments.....................24
SECTION 2.07. Repayment of Loans; Evidence of Debt. .......................24
SECTION 2.08. Prepayment of Loans..........................................25
SECTION 2.09. Fees.........................................................26
SECTION 2.10. Interest.....................................................27
SECTION 2.11. Alternate Rate of Interest...................................28
SECTION 2.12. Increased Costs..............................................28
SECTION 2.13. Break Funding Payments.......................................30
SECTION 2.14. Taxes........................................................30
SECTION 2.15. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs........................................32
SECTION 2.16. Mitigation Obligations; Replacement of Lenders...............33
SECTION 2.17. Additional Reserve Costs.....................................34
SECTION 2.18. Borrowing Subsidiaries.......................................35
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.........................................36
SECTION 3.02. Authorization; Enforceability................................36
SECTION 3.03. Governmental Approvals; No Conflicts.........................36
SECTION 3.04. Financial Condition; No Material Adverse Change..............37
SECTION 3.05. Litigation and Environmental Matters.........................37
2
SECTION 3.06. Compliance with Laws and Agreements..........................37
SECTION 3.07. Investment and Holding Company Status........................37
SECTION 3.08. Taxes........................................................38
SECTION 3.09. ERISA........................................................38
SECTION 3.10. Disclosure...................................................38
SECTION 3.11. Federal Reserve Regulations..................................38
ARTICLE IV
Conditions
SECTION 4.01. Closing Date.................................................39
SECTION 4.02. Effective Date...............................................39
SECTION 4.03. Each Credit Event............................................41
SECTION 4.04. Initial Borrowing by Each Borrowing Subsidiary...............41
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information...................42
SECTION 5.02. Notices of Material Events...................................43
SECTION 5.03. Existence; Conduct of Business...............................44
SECTION 5.04. Payment of Obligations.......................................44
SECTION 5.05. Maintenance of Properties; Insurance.........................44
SECTION 5.06. Books and Records; Inspection Rights. .......................44
SECTION 5.07. Compliance with Laws and Agreements. ........................45
SECTION 5.08. Use of Proceeds..............................................45
SECTION 5.09. Completion of Acquisition....................................45
ARTICLE VI
Negative Covenants
SECTION 6.01. Subsidiary Indebtedness......................................45
SECTION 6.02. Liens........................................................46
SECTION 6.03. Sale and Leaseback Transactions..............................48
SECTION 6.04. Fundamental Changes..........................................48
SECTION 6.05. Transactions with Affiliates.................................49
SECTION 6.06. Restrictive Agreements.......................................49
SECTION 6.07. Debt to Capitalization Ratio.................................50
ARTICLE VII
Events of Default
ARTICLE VIII
The Agent
3
ARTICLE IX
Guarantee
ARTICLE X
Miscellaneous
SECTION 10.01. Notices.....................................................57
SECTION 10.02. Waivers; Amendments.........................................58
SECTION 10.03. Expenses; Indemnity; Damage Waiver..........................58
SECTION 10.04. Successors and Assigns......................................60
SECTION 10.05. Survival....................................................63
SECTION 10.06. Counterparts; Integration;
Effectiveness.............................................64
SECTION 10.07. Severability................................................64
SECTION 10.08. Right of Setoff.............................................64
SECTION 10.09. Governing Law; Jurisdiction; Consent to
Service of Process.........................................65
SECTION 10.10. WAIVER OF JURY TRIAL........................................65
SECTION 10.11. Headings....................................................66
SECTION 10.12. Confidentiality.............................................66
SECTION 10.13. Interest Rate Limitation....................................67
SECTION 10.14. Conversion of Currencies....................................67
SCHEDULES:
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Schedule 2.01 -- Commitments
Schedule 10.01 -- Notices
EXHIBITS:
--------
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Borrowing Subsidiary Agreement
Exhibit B-2 -- Form of Borrowing Subsidiary Termination
Exhibit C-1 -- Form of Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇,
Senior Counsel of the Company
Exhibit C-2 -- Form of Opinion of special Canadian counsel
to the Company
Exhibit D -- Form of Borrowing Request
Exhibit E -- Form of Note
Exhibit F -- Mandatory Costs Rate
364-DAY CREDIT AGREEMENT dated as of June 29, 2001,
among CONOCO INC., a Delaware corporation (the "Company"),
the BORROWING SUBSIDIARIES named on the signature pages
hereto and the other BORROWING SUBSIDIARIES from time to
time party hereto, the LENDERS from time to time party
hereto (the "Lenders") and THE CHASE MANHATTAN BANK, as
administrative agent for the Lenders (the "Administrative
Agent").
The Company has entered into a Support Agreement dated as of May 28,
2001 (the "Support Agreement"), among the Company, 3794407 Canada Inc.
("Bidco", since renamed Conoco Northern Inc.) and Gulf Canada Resources
Limited ("Gulf"), pursuant to which Bidco has offered to acquire all the
outstanding ordinary shares of Gulf by means of an all-cash public take-over
bid (the "Offer") and a subsequent Compulsory Acquisition or Subsequent
Acquisition Transaction (each as defined in the Support Agreement). Such
acquisition and all related transactions are referred to herein as the
"Acquisition".
In connection with the foregoing, the Company has requested the
Lenders to extend credit to enable it and certain Borrowing Subsidiaries to
borrow on a revolving credit basis on and after the date hereof and at any
time and from time to time prior to the Maturity Date (as herein defined) a
principal amount not in excess of US$4,500,000,000 (or the equivalent in
Foreign Currencies as provided herein) at any time outstanding. The proceeds
of such borrowings are to be used to finance the Acquisition (or to provide
liquidity in connection with issuances and sales of commercial paper to
finance the Acquisition) and to pay related fees and expenses. The Lenders are
willing to extend such credit to the the Company and the Borrowing
Subsidiaries on the terms and subject to the conditions herein set forth.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, shall bear interest
at a rate determined by reference to the Alternate Base Rate.
"Acquisition" has the meaning assigned to such term in the preamble
hereto.
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"Adjusted LIBO Rate" means, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for
such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Agent" means the Administrative Agent.
"Agreement Currency" has the meaning assigned to such term in
Section 10.14(b).
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of
such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"Applicable Creditor" has the meaning assigned to such term in
Section 10.14(b).
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment.
If the Commitments have terminated or expired, the Applicable Percentages
shall be determined based upon the Commitments most recently in effect, giving
effect to any assignments.
"Applicable Rate" means, for any day, with respect to any
Eurocurrency Revolving Loan, or with respect to the facility fees payable
hereunder, as the case may be, the applicable rate per annum (expressed in
basis points) set forth below under the caption "Eurocurrency Spread" or
"Facility Fee Rate", as the case may be, based upon the ratings by ▇▇▇▇▇'▇ and
S&P, respectively, applicable on such date to the Index Debt:
Index Debt Ratings: Eurocurrency Facility Fee
(S&P/▇▇▇▇▇'▇) Spread Rate
Category 1
A or higher/A2 or 17.5 5.0
higher
Category 2
A-/A3 19.0 6.0
Category 3
BBB+/Baa1 27.0 8.0
3
Category 4
BBB/Baa2 40.0 10.0
Category 5
BBB-/Baa3 62.5 12.5
Category 6
lower than BBB-/lower 82.5 17.5
than Baa3
For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇ or S&P shall
not have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then such
rating agency shall be deemed to have established a rating in Category 6; (ii)
if the ratings established or deemed to have been established by ▇▇▇▇▇'▇ and
S&P for the Index Debt shall fall within different Categories, the Applicable
Rate shall be based on the higher of the two ratings unless one of the ratings
is two or more Categories lower than the other, in which case the Applicable
Rate shall be determined by reference to the Category next above that of the
lower of the two ratings; and (iii) if the ratings established or deemed to
have been established by ▇▇▇▇▇'▇ and S&P for the Index Debt shall be changed
(other than as a result of a change in the rating system of ▇▇▇▇▇'▇ or S&P),
such change shall be effective as of the date on which it is first announced
by the applicable rating agency. Each change in the Applicable Rate shall
apply during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change. If the rating system of ▇▇▇▇▇'▇ or S&P shall change, or if either such
rating agency shall cease to be in the business of rating corporate debt
obligations, the Company and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined
by reference to the rating most recently in effect prior to such change or
cessation.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative
Agent, in the form of Exhibit A or any other form approved by the
Administrative Agent and the Company.
"Attributable Debt" means, with respect to any Sale- Leaseback
Transaction, the present value (discounted at the rate set forth or implicit
in the terms of the lease included in such Sale-Leaseback Transaction) of the
total obligations of the lessee for rental payments (other than amounts
required to be paid on account of taxes, maintenance, repairs, insurance,
assessments, utilities, operating and labor costs and other items which do not
constitute payments for property rights) during the remaining term of the
lease included in such Sale-Leaseback Transaction (including any period for
which such lease has been extended). In the case of any lease which is
terminable by the lessee upon payment of a penalty, the Attributable Debt
shall be
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the lesser of the Attributable Debt determined assuming termination upon the
first date such lease may be terminated (in which case the Attributable Debt
shall also include the amount of the penalty, but no rent shall be considered
as required to be paid under such lease subsequent to the first date upon
which it may be so terminated) or the Attributable Debt determined assuming no
such termination.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date
of termination of the Commitments.
"Bidco" has the meaning assigned to such term in the preamble
hereto.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means the Company or any Borrowing Subsidiary.
"Borrowing" means Revolving Loans of the same Type, made, converted
or continued on the same date and, in the case of Eurocurrency Loans, as to
which a single Interest Period is in effect.
"Borrowing Minimum" means (a) in the case of a Revolving Borrowing
denominated in US Dollars, US$10,000,000 and (b) in the case of a Revolving
Borrowing denominated in any Foreign Currency, the smallest amount of such
Foreign Currency that has a US Dollar Equivalent in excess of US$10,000,000.
"Borrowing Multiple" means (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 Foreign Currency, 1,000,000 units (or, in the case
Sterling, 500,000 units) of such currency.
"Borrowing Request" means a request by a Borrower for a Revolving
Borrowing in accordance with Section 2.03.
"Borrowing Subsidiary" means, at any time, each of the Subsidiaries
that (a) is named on the signature pages to this Agreement or (b) has been
designated as a Borrowing Subsidiary by the Company pursuant to Section 2.18,
other than any such Subsidiary that has ceased to be a Borrowing Subsidiary as
provided in Section 2.18.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary
Agreement substantially in the form of Exhibit B-1.
"Borrowing Subsidiary Termination" means a Borrowing Subsidiary
Termination substantially in the form of Exhibit B-2.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ are authorized or required by law to remain closed; provided
that, (a) when used in connection with a Eurocurrency Loan denominated in any
currency other than Euros, the term "Business Day" shall also exclude any day
on which banks are not open for dealings in deposits in such currency in the
London interbank market and (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.
"Calculation Date" means the last Business Day of each calendar
month.
"Canadian Dollars" means the lawful money of Canada.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease (or other arrangement
conveying the right to use) of real or personal property, or a combination
thereof, which obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by 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 May 11, 1999), of shares
representing more than 40% of the aggregate ordinary voting power represented
by the issued and outstanding capital stock of the Company; or (b) occupation
of a majority of the seats (other than vacant seats) on the board of directors
of the Company by Persons who were neither (i) directors on the date hereof
nor (ii) nominated or appointed by a majority vote of the board of directors
of the Company.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule
or regulation or in the interpretation or application thereof (to the extent
such interpretation or application has the force of law or an Agent or Lender
hereunder determines in good faith that noncompliance therewith would be
materially disadvantageous to it in relation to the income to be derived by it
under this Agreement) by any Governmental Authority after the date of this
Agreement or (c) compliance by any Lender (or, for purposes of Section
2.12(b), by any lending office of such Lender or by such Lender's holding
company, if any) with any request, guideline or directive (to the extent such
guideline or directive has the force of law or an Agent or Lender hereunder
determines in good faith that noncompliance therewith would be materially
disadvantageous to it in relation to the income to be derived by it under this
Agreement) of any Governmental Authority made or issued after the date of this
Agreement.
6
"Closing Date" means the date on which the conditions specified in
Sections 4.01 are satisfied (or waived in accordance with Section 10.02).
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans, expressed as an amount representing the
maximum aggregate potential amount of such Lender's Revolving Credit Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.06 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 10.04. The initial amount
of each Lender's Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable. The initial aggregate amount of the Lenders'
Commitments is US$4,500,000,000.
"Committed Currency" means US Dollars and Foreign Currencies.
"Compulsory Acquisition" has the meaning assigned to such term in
the Support Agreement.
"Consolidated Net Tangible Assets" means at any time, the aggregate
amount of assets (less applicable accumulated depreciation, depletion and
amortization and other reserves and other properly deductible items) of the
Company and its Subsidiaries, minus (a) all current liabilities of the Company
and its Subsidiaries (excluding (i) liabilities that by their terms are
extendable or renewable at the option of the obligor to a date more than 12
months after the date of determination and (ii) current maturities of
long-term debt) and (b) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other intangible assets of the
Company and its Subsidiaries, all as set forth in the most recent consolidated
balance sheet of the Company and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Total Balance Sheet Indebtedness" means on any date
all Indebtedness of the Company and its Subsidiaries that would be reflected
on a consolidated balance sheet of the Company and its Subsidiaries prepared
in accordance with GAAP as of such date.
"Consolidated Total Capitalization" means on any date the sum of (a)
Consolidated Total Balance Sheet Indebtedness on such date, (b) shareholders'
equity of the Company and its Subsidiaries on such date and (c) to the extent
not included in determining shareholders' equity of the Company and its
Subsidiaries, the Minority Interests in the Company's Subsidiaries on such
date, in each case determined on a consolidated basis in accordance with GAAP.
7
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Effective Date" means the date on which the conditions specified in
Sections 4.01 and 4.02 are satisfied (or waived in accordance with Section
10.02).
"EMU Legislation" means 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 Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release of any Hazardous Material or to health and
safety matters that have the force of law or are otherwise legally binding on
the Company or any Subsidiary.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company or any
Subsidiary directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials or Oil in a manner
that results in damage to the environment, (c) exposure to any Hazardous
Materials or Oil, (d) the release of any Hazardous Materials or Oil into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period described in
Section 4043(b) of ERISA is
8
waived); (b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code
or Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the Company
or any of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by the Company or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating
to an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Company or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Company or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Euro" or "E" means the single currency of the European Union as
constituted by the Treaty on European Union and as referred to in the EMU
Legislation.
"Eurocurrency", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, shall
bear interest at a rate determined by reference to the Adjusted LIBO Rate.
"Euro/Sterling/Yen Revolving Credit Exposure" means, with respect to
any Lender at any time, such Lender's Applicable Percentage of the aggregate
amount of the US Dollar Equivalents of the principal amounts of the
outstanding Revolving Loans denominated in Euros, Sterling or Yen.
"Euro/Sterling/Yen Sublimit" means US$1,000,000,000.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Exchange Rate" means on any day, with respect to any
Foreign Currency, the rate at which such Foreign Currency may be exchanged
into US Dollars, as set forth at approximately 11:00 a.m., Houston, Texas
time, on such day on the Reuters [NFX=] Page for such Foreign Currency. In the
event that such rate does not appear on any Reuters [NFX=] Page, the Exchange
Rate 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 the Company, or, in the absence of such agreement, such Exchange
Rate shall instead be the arithmetic average of the spot rates of exchange of
the Administrative Agent or, if the Administrative Agent shall so determine,
one of its Affiliates in the market where its foreign currency exchange
operations in respect of such Foreign Currency
9
are then being conducted, at or about 10:00 a.m., local time, on such date for
the purchase of US Dollars for delivery two Business Days later; provided that
if at the time of any such determination, for any reason, no such spot rate is
being quoted, the Administrative Agent, after consultation with the Company,
may use any reasonable method it deems appropriate to determine such rate, and
such determination shall be conclusive absent manifest error.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on account
of any obligation of any Borrower hereunder, (a) income, franchise or other
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which such Borrower is located and (c) in
the case of a Foreign Lender, any withholding tax that is imposed by the
United States of America or by any other jurisdiction in which such Lender is
organized, has its principal office or its applicable lending office on
amounts payable to such Foreign Lender at the time such Foreign Lender becomes
a party to this Agreement (or designates a new lending office) or is
attributable to such Foreign Lender's failure to comply with Section 2.14(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment),
to receive additional amounts from any Borrower with respect to such
withholding tax pursuant to Section 2.14(a).
"Existing Credit Agreements" means (i) the Amended and Restated
364-Day Credit Agreement dated as of May 3, 2001, among the Company, the
lenders party thereto and the Agent and (ii) the Five-Year Credit Agreement
dated as of May 11, 1999, among the Company, the lenders party thereto and the
Agent.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average (rounded upwards,
if necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer, assistant treasurer or controller of the
Company or any other officer or employee that any of the foregoing may, in
accordance with the Company's customary business practices, designate to act
as a Financial
10
Officer by notice delivered to the Administrative Agent in accordance with
this Agreement.
"Foreign Lender" means, with respect to any Borrower, any Lender
that is organized under the laws of a jurisdiction other than that in which
such Borrower is located. For purposes of this definition, the United States
of America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"Foreign Currency" means Euros, Sterling, Yen and Canadian Dollars.
"G-10 Country" means the United States, Canada, Germany, Britain,
France, Italy, Japan, Switzerland, Sweden, Belgium and the Netherlands.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing any
Indebtedness of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, and including any obligation of the guarantor,
direct or indirect, (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness of the payment thereof, (c) to maintain working
capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or (d) as an account party in respect of any letter of
credit or letter of guaranty issued to support such Indebtedness; provided,
that the term Guarantee shall not include (x) endorsements for collection or
deposit in the ordinary course of business, (y) indemnities entered into in
the ordinary course of business and (z) guarantees of performance obligations.
"Gulf" has the meaning assigned to such term in the preamble hereto.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
asbestos or asbestos containing materials, polychlorinated biphenyls, radon
gas,
11
infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law; provided that Hazardous Materials
shall not include Oil.
"Hedging Agreement" means any interest hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind representing borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person (excluding accounts
payable and accrued liabilities incurred in the ordinary course of business),
(d) all obligations of such Person in respect of the deferred purchase price
of property or services (excluding accounts payable and accrued liabilities
incurred in the ordinary course of business), (e) all Indebtedness of others
secured by any Lien on property owned or acquired by such Person, whether or
not the Indebtedness secured thereby has been assumed, (f) all Guarantees by
such Person of Indebtedness of others of a type described in clauses (a)
through (d) and (g) of this definition, (g) all Capital Lease Obligations of
such Person, (h) all obligations, contingent or otherwise, of such Person as
an account party in respect of letters of credit and letters of guaranty
supporting Indebtedness of a type described in clauses (a) through (d) and (g)
of this definition, (i) all obligations, contingent or otherwise, of such
Person to pay bankers' acceptances and (j) all obligations in respect of one
or more Hedging Agreements. For purposes of determining Indebtedness, the
"principal amount" of the obligations of the Company or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Company or such
Subsidiary would be required to pay if such Hedging Agreement were terminated
at such time.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness for
borrowed money of the Company that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Interest Election Request" means a request by a Borrower to convert
or continue a Revolving Borrowing in accordance with Section 2.05.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December and (b) with respect to
any Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each
12
day prior to the last day of such Interest Period that occurs at intervals of
three months' duration after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurocurrency Borrowing,
the period commencing on the date of such Borrowing and ending seven, fourteen
or twenty-one days, or on the numerically corresponding day in the calendar
month that is one, two, three or six months (or with the consent of each
Lender making a Loan as part of such Borrowing, any other period), thereafter,
as the applicable Borrower may elect; provided, that (i) if any Interest
Period would end on a day other than a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless, in the case of a
Eurocurrency Borrowing only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period of one month or
longer pertaining to a Eurocurrency Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall
be the date on which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing. Notwithstanding anything else
provided herein, no Interest Period shall end after the Maturity Date.
"Judgment Currency" has the meaning assigned to such term in Section
10.14(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 which 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" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing for
any Interest Period, the rate appearing on Bloomberg's British Banker
Association rate page (or on any successor or substitute page of such service,
or any successor to
13
or substitute for such service, providing rate quotations comparable to those
currently provided on such page of such service, as reasonably determined by
the Administrative Agent from time to time for purposes of providing
quotations of interest rates applicable to deposits in the currency of such
Borrowing in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as
the rate for deposits in the currency of such Borrowing with a maturity
comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to
such Eurocurrency Borrowing for such Interest Period shall be the rate at
which deposits in the currency of such Borrowing and for a maturity comparable
to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period.
"Lien" means, with respect to any asset, any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset.
"Loan Documents" means this Agreement, each Borrowing Subsidiary
Agreement, each Borrowing Subsidiary Termination and each Note delivered
pursuant to this Agreement, as such documents may be amended, modified,
supplemented or restated from time to time.
"Loans" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or condition, financial or otherwise, of the
Company and the Subsidiaries taken as a whole or (b) the ability of the
Company to perform any of its payment obligations under the Loan Documents.
"Material Indebtedness" means Indebtedness (other than the Loans) of
any one or more of the Company and its Subsidiaries in an aggregate
outstanding principal amount exceeding US$100,000,000.
"Material Subsidiary" means any "significant subsidiary" as defined
in Regulation S-X of the Securities and Exchange Commission under the
Securities Act of 1933 with all references to "10 percent" contained therein
being deemed to be references to "5 percent".
"Maturity Date" means June 27, 2002.
"Minority Interest" means, with respect to any Subsidiary of the
Company at any date, the equity interest of a Person other than the Company or
another Subsidiary in such Subsidiary.
14
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Note" means any promissory note of any Borrower issued pursuant to
this Agreement.
"Obligations" means (a)(i) the principal of and premium, if any, and
interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on the Loans, when and as due,
whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise, and (ii) all other monetary obligations, including
fees, costs, expenses and indemnities, whether primary, secondary, direct,
contingent, fixed 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), of
the Company or any other Borrower under this Agreement or any other Loan
Document and (b) all obligations of the Borrowers under each Hedging Agreement
entered into with a counterparty that was a Lender or an Affiliate of a Lender
at the time such Hedging Agreement was entered into.
"Offer" has the meaning assigned to such term in the preamble
hereto.
"Oil" means oil of any kind or in any form, including but not
limited to petroleum or any fractions, distillates or derivatives thereof,
fuel oil, sludge, oil refuse, and oil mixed with wastes, but not including any
petroleum product or by- product (including crude oil or any fraction thereof)
which is specifically listed or designated as a hazardous substance under
subparagraphs (A) through (F) of Section 101(14) of the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601 et.
seq.)
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document, other than income, franchise and similar taxes.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in and any successor entity performing similar functions.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV
15
of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of
which the Company or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as
being effective.
"Register" has the meaning set forth in Section 10.04.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System of the United States of America as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
Credit Exposures and unused Commitments representing more than 50% of the sum
of the total Revolving Credit Exposures and unused Commitments at such time.
"Reset Date" has the meaning assigned to such term in Section
1.06(a).
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum at such time, without duplication, of (a) such Lender's
Applicable Percentage of the principal amounts of the outstanding Revolving
Loans denominated in US Dollars plus (b) such Lender's Applicable Percentage
of the aggregate amount of the US Dollar Equivalents of the principal amounts
of the outstanding Revolving Loans denominated in Foreign Currencies.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"Sale-Leaseback Transaction" means any arrangement whereby the
Company or a Subsidiary shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease property that it intends to use for substantially the
same purpose or purposes as the property sold or transferred; provided that
any such arrangement entered into within 365 days after the acquisition,
construction or substantial improvement of the subject property shall not be
deemed to be a "Sale-Leaseback Transaction".
"S&P" means Standard & Poor's Rating Group.
16
"Statutory Reserve Rate" means, with respect to any currency, a
fraction (expressed as a decimal), the numerator of which is the number one
and the denominator of which is the number one minus the aggregate of the
maximum reserve, liquid asset or similar percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a decimal
established by any Governmental Authority of the United States or of the
jurisdiction of such currency or any jurisdiction in which Loans in such
currency are made to which banks in such jurisdiction are subject for any
category of deposits or liabilities customarily used to fund loans in such
currency or by reference to which interest rates applicable to Loans in such
currency are determined. Such reserve, liquid asset or similar percentages
shall include those imposed pursuant to Regulation D of the Board.
Eurocurrency Loans shall be deemed to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under Regulation D or any other
applicable law, rule or regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"Sterling" or "(pound)" means the lawful money of the United
Kingdom.
"Subsequent Acquisition Transaction" has the meaning assigned to
such term in the Support Agreement.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which are required to be consolidated with those
of the parent in the parent's consolidated financial statements if such
consolidated financial statements were prepared in accordance with GAAP as of
such date.
"Subsidiary" means any subsidiary of the Company.
"Support Agreement" has the meaning assigned to such term in the
preamble hereto.
"TARGET" means the Trans-European Automated Real-time Gross
settlement Express Transfer system.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" means the execution, delivery and performance by the
Borrowers of this Agreement and each other Loan Document, the Acquisition, the
borrowing of Loans and the use of the proceeds thereof.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan,
17
or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.
"US Dollar Equivalent" means, 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 Foreign Currency, the equivalent in US Dollars of such amount,
determined by the Administrative Agent pursuant to Section 1.06(b) using the
Exchange Rate with respect to such 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.
"Wholly Owned Subsidiary" means any Subsidiary all the equity
interests in which (other than directors' qualifying shares and/or other
nominal amounts of equity interests that are required to be held by Persons
other than the Company or its Wholly Owned Subsidiaries under applicable law)
are owned, directly or indirectly, by the Company.
"Withdrawal Liability" means 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.
"Yen" means the lawful money of Japan.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Type (e.g., a
"Eurocurrency Loan"). Borrowings also may be classified and referred to by
Type (e.g., a "Eurocurrency Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, (e) all references herein to the "date hereof" shall be
construed as
18
referring to June 29, 2001, and (f) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights. References herein to the taking of any action
hereunder of an administrative nature by any Borrower shall be deemed to
include references to the Company taking such action on such Borrower's behalf
and the Agents are expressly authorized to accept any such action taken by the
Company as having the same effect as if taken by such Borrower.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after May 11, 1999 in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Company that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.
SECTION 1.05. Certain Determinations by Agent and Lenders. Any
determination of or certificate delivered by the Administrative Agent or a
Lender under Sections 2.11, 2.12, 2.13, 2.14 or 2.17 of this Agreement shall
be prima facie evidence of the correctness of such determination or of the
matter set forth and shall be binding on the parties hereto unless any other
party hereto shall have demonstrated that such determination shall have been
made in error or such certificate shall be incorrect or shall not have been
prepared based on reasonable assumptions.
SECTION 1.06. Exchange Rates. (a) Not later than 1:00 p.m., Houston,
Texas time, on each Calculation Date, the Administrative Agent shall (i)
determine the Exchange Rate as of such Calculation Date with respect to each
Foreign Currency and (ii) give notice thereof to the Lenders and the Company.
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 10.14 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 Foreign Currencies.
(b) Not later than 5:00 p.m., Houston, Texas time, on each Reset
Date and each date on which Revolving Loans denominated in any Foreign
Currency are made, the Administrative Agent shall (i) determine the aggregate
amount of the US Dollar
19
Equivalents of the principal amounts of the Loans denominated in Foreign
Currencies then outstanding (after giving effect to any Loans denominated in
Foreign Currencies made or repaid on such date) and (ii) notify the Lenders
and the Company of the results of such determination.
SECTION 1.07. Redenomination of Certain Foreign Currencies. (a) Each
obligation of any party to this Agreement to make a payment denominated in the
national currency unit of any member state of the European Union that adopts
the Euro as its lawful currency after the date hereof shall be redenominated
into Euro at the time of such adoption (in accordance with the EMU
Legislation). If, in relation to the currency of any such member state, the
basis of accrual of interest expressed in this Agreement in respect of that
currency shall be inconsistent with any convention or practice in the London
Interbank Market for the basis of accrual of interest in respect of the Euro,
such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful
currency; provided that if any Borrowing in the currency of such member state
is outstanding immediately prior to such date, such replacement shall take
effect, with respect to such Borrowing, at the end of the then current
Interest Period.
(b) Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent in consultation
with the Company may from time to time specify to be appropriate to reflect
the adoption of the Euro by any member state of the European Union and any
relevant market conventions or practices relating to the Euro.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees to make Revolving Loans to the Borrowers from
time to time during the Availability Period in any Committed Currency in an
aggregate principal amount that will not result in (a) such Lender's Revolving
Credit Exposure exceeding such Lender's Commitment, (b) the sum of the total
Revolving Credit Exposures exceeding the total Commitments or (c) the sum of
the total Euro/Sterling/Yen Revolving Credit Exposures exceeding the
Euro/Sterling/Yen Sublimit. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrowers may borrow, prepay and
reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
20
Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required hereunder.
(b) Subject to Section 2.11, (i) each Revolving Loan denominated in
a Foreign Currency shall be comprised entirely of Eurocurrency Loans and (ii)
each Revolving Loan denominated in US Dollars shall be comprised entirely of
ABR Loans or Eurocurrency Loans as the applicable Borrower may request in
accordance herewith. Each Lender at its option may make any Eurocurrency Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect the
obligation of any Borrower to repay such Loan in accordance with the terms of
this Agreement.
(c) At the commencement of each Interest Period for any Eurocurrency
Revolving Borrowing and at the time that any ABR Borrowing is made, such
Borrowing shall be in an aggregate amount that is not less than the Borrowing
Minimum and an integral multiple of the Borrowing Multiple. Notwithstanding
the foregoing,
(i) any Borrowing denominated in US Dollars may be in an aggregate
amount that is equal to the entire unused balance of the total
Commitments;
(ii) any Borrowing denominated in Canadian Dollars may be in an
aggregate amount the US Dollar Equivalent of which is equal to the entire
unused balance of the total Commitments; and
(iii) any Borrowing denominated in Euros, Sterling or Yen may be in
an aggregate amount the US Dollar Equivalent of which is equal to the
excess of (A) the Euro/Sterling/Yen Sublimit over (B) the total
Euro/Sterling/Yen Revolving Credit Exposures (without counting such
Borrowing).
Borrowings of more than one Type may be outstanding at the same time; provided
that there shall not at any time be more than a total of ten Eurocurrency
Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a
Revolving Borrowing, the applicable Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a Eurocurrency Borrowing
denominated in US Dollars, not later than 10:00 a.m., Houston, Texas time,
three Business Days before the date of the proposed Borrowing, (b) in the case
of a Eurocurrency Borrowing denominated in a Foreign Currency, not later than
10:00 a.m., Houston, Texas time, four Business Days before the date of the
proposed Borrowing and
21
(c) in the case of an ABR Borrowing, not later than 10:00 a.m., Houston, Texas
time, on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Borrowing Request in the
form of Exhibit D or such other form as shall be approved by the
Administrative Agent and the Company and signed by the applicable Borrower, or
by the Company on behalf of the applicable Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in
compliance with Section 2.02:
(i) the Borrower requesting such Borrowing (or on whose behalf the
Company is requesting such Borrowing);
(ii) the currency and the aggregate principal amount of the
requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) in the case of a Borrowing denominated in US Dollars, whether
such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
(v) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vi) the location and number of the relevant Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.04.
If no currency is specified with respect to any Eurocurrency Revolving
Borrowing, then the relevant Borrower shall be deemed to have selected US
Dollars. If no election as to the Type of Revolving Borrowing is specified,
then the requested Revolving 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 Foreign Currency, a Eurocurrency Borrowing. If no
Interest Period is specified with respect to any requested Eurocurrency
Revolving Borrowing, then the relevant 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. 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 11:00 a.m., Houston, Texas time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such
Loans available to the applicable Borrower by promptly
22
crediting the amounts so received, in like funds, to an account of such
Borrower maintained with the Administrative Agent in Houston, Texas or such
other location as may be specified by such Borrower and consented to by the
Administrative Agent (such consent not to be unreasonably withheld) and
designated by such Borrower in the applicable Borrowing Request.
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Borrowers severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to the applicable Borrower to but excluding the date of payment to
the Administrative Agent, at (i) in the case of such Lender, (x) if such
Borrowing is denominated in US Dollars, the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation, and (y) if such
Borrowing is denominated in a Foreign Currency, the rate reasonably determined
by the Administrative Agent to be the cost to it of funding such amount, or
(ii) in the case of a Borrower, the interest rate applicable to such
Borrowing. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.05. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurocurrency Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the
applicable Borrower may elect to convert such Borrowing to a different Type or
to continue such Borrowing and, in the case of a Eurocurrency Revolving
Borrowing, may elect Interest Periods therefor, all as provided in this
Section; provided that no Borrower may elect to convert any Borrowing
denominated in a Foreign Currency to an ABR Borrowing. The applicable Borrower
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among
the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, a Borrower (or the
Company on its behalf) shall notify the Administrative Agent of such election
by telephone by the time that a Borrowing Request would be required under
Section 2.03 if such Borrower were requesting a Revolving Borrowing of the
Type
23
resulting from such election to be made on the effective date of such
election. Each such telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the applicable Borrower (or the
Company on its behalf).
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If a Borrower requests in any such Interest Election Request a Eurocurrency
Borrowing but does not specify an Interest Period, then such Borrower shall be
deemed to have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) If a Borrower fails to deliver a timely Interest Election
Request with respect to a Eurocurrency Revolving Borrowing prior to the end of
the Interest Period applicable thereto, then, unless such Borrowing is repaid
as provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing (unless such Borrowing is denominated in a
Foreign Currency, in which case such Borrowing shall become due and payable on
the last day of such Interest Period). Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Company, then, so long as an Event of Default is continuing (i) no outstanding
Revolving Borrowing denominated in
24
a Foreign Currency may be continued for an Interest Period of more than one
month's duration, (ii) no outstanding Revolving Borrowing denominated in US
Dollars may be converted to or continued as a Eurocurrency Borrowing and (iii)
unless repaid, each Eurocurrency Revolving Borrowing denominated in US Dollars
shall be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto.
SECTION 2.06. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Company may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of US$1,000,000 and not
less than US$10,000,000 and (ii) the Company shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans
in accordance with Section 2.08, the Revolving Credit Exposures of all the
Lenders would exceed the total Commitments.
(c) The Company shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Company pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by the Company may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Company (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) Each
Borrower hereby unconditionally promises to pay to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and accrued interest payable and paid to such Lender from time to
time hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Type thereof and
the Interest Period applicable
25
thereto, (ii) the amount of any principal or accrued 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 for
the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of any
Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, each Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns)
and in the form of Exhibit E or such other form as shall be approved by the
Administrative Agent and the Company. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 10.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if
such promissory note is a registered note, to such payee and its registered
assigns).
SECTION 2.08. Prepayment of Loans. (a) The Borrowers shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (c) of this
Section.
(b) In the event and on each occasion that:
(i) the aggregate Revolving Credit Exposures exceed 105% of the
total Commitments, or
(ii) the aggregate Euro/Sterling/Yen Revolving Credit Exposures
exceed 105% of the Euro/Sterling/Yen Sublimit,
then, in either case, the Borrowers shall promptly prepay Revolving Borrowings
in an aggregate amount sufficient to eliminate such excess. The Administrative
Agent shall promptly notify the Company in the event it determines that any
prepayment is required under this paragraph and the Borrowers shall make such
prepayment no later than the second Business Day following such notice.
(c) The Company shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Revolving Borrowing, not later than 10:00 a.m.,
Houston, Texas time, three Business Days before the date of prepayment or (ii)
in the case
26
of prepayment of an ABR Revolving Borrowing, not later than 10:00 a.m.,
Houston, Texas time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.06, then such notice of
prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.06. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type as provided in Section 2.02.
Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.10.
SECTION 2.09. Fees. (a) The Borrowers agree to pay to the
Administrative Agent for the account of each Lender participation fees on the
Effective Date in the amounts separately agreed upon among the Borrowers, the
Lenders and the Administrative Agent.
(b) The Borrowers agree to pay to the Administrative Agent for the
account of each Lender a facility fee, which shall accrue at the Applicable
Rate on the daily amount of the Commitment of such Lender (whether used or
unused) during the period from and including the date hereof to but excluding
the date on which such Commitment terminates; provided that, if such Lender
continues to have any Revolving Credit Exposure after its Commitment
terminates, then such facility fee shall continue to accrue on the daily
amount of such Lender's Revolving Credit Exposure from and including the date
on which its Commitment terminates to but excluding the date on which such
Lender ceases to have any Revolving Credit 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, and on the date on which the Commitments shall have terminated
and the Lenders shall have no further Revolving Credit Exposures. 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).
(c) For any day on which the aggregated US Dollar Equivalents of the
outstanding principal amounts of Loans shall be greater than 33% of the total
Commitments, the Borrowers shall pay to the Administrative Agent for the
account of each Lender a utilization fee equal to 0.10% per annum on the
aggregate amount of each Lender's outstanding Loans on such day. Accrued and
unpaid utilization fees, if any, shall be payable on the last day of each
March, June, September and December and on the date on which the Commitments
shall have terminated and the Lenders shall have no Revolving Credit
Exposures. All utilization fees shall
27
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).
(d) The Borrowers agree to pay to the Administrative Agent, for its
own account, fees in the amounts and at the times separately agreed upon
between any Borrower and the Administrative Agent.
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of participation fees, facility fees and utilization fees, to the
Lenders. Fees paid shall not be refundable under any circumstances.
SECTION 2.10. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by any Borrower hereunder is
not paid when due, whether at stated maturity, upon acceleration or otherwise,
such overdue amount shall bear interest, after as well as before judgment, at
a rate per annum equal to (i) in the case of overdue principal of any Loan, 2%
per annum plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount,
2% per annum plus the rate applicable to ABR Loans as provided in paragraph
(a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment
of an ABR Revolving Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the
date of such repayment or prepayment and (iii) in the event of any conversion
of any Eurocurrency Revolving Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(f) All interest hereunder shall be computed on the basis of a year
of 360 days, except that (i) interest on Borrowings denominated in Sterling
and (ii) interest computed by reference to the Alternate Base Rate at times
when the Alternate Base Rate is based on the Prime Rate shall be computed on
the basis of a year of 365 days (or 366 days in a leap year), and in each case
shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The
28
applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.11. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing denominated
in any currency:
(a) the Administrative Agent determines that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lenders of
making or maintaining their Loans included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing
denominated in such currency to, or continuation of any Revolving Borrowing
denominated in such currency as, a Eurocurrency Borrowing shall be
ineffective, and any Eurocurrency Borrowing denominated in such currency that
is requested to be continued (A) if such currency is the US Dollar, shall be
converted to an ABR Borrowing on the last day of the Interest Period
applicable thereto and (B) if such currency is a Foreign Currency, shall be
repaid on the last day of the Interest Period applicable thereto and (ii) any
Borrowing Request for a Eurocurrency Revolving Borrowing denominated in such
currency (A) if such currency is the US Dollar, shall be deemed a request for
an ABR Borrowing and (B) if such currency is a Foreign Currency, shall be
ineffective; provided that if the circumstances giving rise to such notice
affect only one Type of Borrowings, then the other Type of Borrowings shall be
permitted.
SECTION 2.12. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurocurrency Loans made by such
Lender;
29
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or to
reduce the amount of any sum received or receivable by such Lender hereunder
(whether of principal, interest or otherwise), then the Borrowers will pay to
such Lender such additional amount or amounts as will compensate such Lender
for such additional costs incurred or reduction suffered.
(b) If any Lender in good faith determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's capital or on the capital of such Lender's
holding company, if any, as a consequence of this Agreement or the Loans made
by such Lender to a level below that which such Lender or such Lender's
holding company could have achieved but for such Change in Law (taking into
consideration such Lender's policies and the policies of such Lender's holding
company with respect to capital adequacy), then from time to time the Company
will pay to such Lender such additional amount or amounts as will compensate
such Lender or such Lender's holding company for any such reduction suffered.
(c) If the cost to any Lender of making or maintaining any Loan to
any Borrowing Subsidiary is increased (or the amount of any sum received or
receivable by any Lender (or its applicable lending office) is reduced) by an
amount deemed in good faith by such Lender to be material, by reason of the
fact that such Borrowing Subsidiary is incorporated in, or conducts business
in, a jurisdiction outside the United States, then from time to time the
Company will pay or cause such Borrowing Subsidiary to pay to such Lender such
additional amount or amounts as will compensate such Lender or such Lender's
holding company for any such cost incurred or reduction suffered.
(d) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may
be, as specified in paragraph (a), (b) or (c) of this Section shall be
delivered to the Company. The Company shall pay such Lender the amount shown
as due on any such certificate within 20 days after receipt thereof.
(e) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Company shall
not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than 90 days prior to the date
that such Lender notifies the Company of the Change in Law giving rise to such
increased costs or reductions; provided further that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
90-day period referred to above shall be extended to include the period of
retroactive effect thereof.
30
SECTION 2.13. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurocurrency Loan other than on the last day
of an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Revolving Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.08(c) and is revoked in accordance therewith) or (d)
the assignment of any Eurocurrency Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the Company
pursuant to Section 2.16, then, in any such event, the Borrowers shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurocurrency Loan, such loss, cost or expense to any
Lender shall be equal to an amount determined in good faith by such Lender to
be the excess, if any, of (i) the amount of interest which would have accrued
on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the
period from the date of such event to the last day of the then current
Interest Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Loan), over (ii) the amount of interest which would accrue on such principal
amount for such period at the interest rate which such Lender would bid were
it to bid, at the commencement of such period, for US Dollar deposits of a
comparable amount and period from other banks in the Eurocurrency market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Company. The Borrowers shall pay such Lender the amount shown as due on any
such certificate within 10 days after receipt thereof.
SECTION 2.14. Taxes. (a) Any and all payments by or on account of
any obligation of the Borrowers 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 determined in good faith by the
Administrative Agent or the applicable Lender to be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) the Administrative Agent, or 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.
31
(c) The Borrowers shall indemnify the Administrative Agent and each
Lender within 10 days after written demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes paid by the Administrative Agent, or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrowers 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 reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by a Borrower to a Governmental Authority, the Company shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which a
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Company (with a
copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed
by applicable law or reasonably requested by the Company as will permit such
payments to be made without withholding or at a reduced rate.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by a Borrower or with respect to which a
Borrower has paid additional amounts pursuant to this Section 2.14, it shall
pay over such refund to the Company (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrowers under this Section
2.14 with respect to the Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of the Administrative Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, however, that the Borrowers,
upon the request of the Administrative Agent or such Lender, agrees to repay
the amount paid over to such Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative
Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. Nothing
contained in this paragraph (f) shall require the Administrative Agent or any
Lender to make available its tax returns (or any other information relating to
its taxes which it deems confidential) to any Borrower or any other Person.
32
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) Each Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, accrued
interest, or fees, or of amounts payable under Section 2.12, 2.13, 2.14 or
2.17, or otherwise) prior to 11:00 a.m., Houston, Texas time, on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at Houston, Texas or
at such other offices as the Administrative Agent shall from time to time
specify in a notice delivered to the Company; provided that payments pursuant
to Sections 2.12, 2.13, 2.14 and 10.03 shall be made directly to the Persons
entitled thereto; provided further that payments denominated in a Foreign
Currency required to be made hereunder shall be made to the Administrative
Agent at its offices in London. 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 under
any Loan Document 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 and under each other Loan
Document shall be made (i) in the case of any payment in respect of the
principal of or interest on any Loan, in the currency of such Loan, and (ii)
in the case of any other payment, in US Dollars. Unless otherwise agreed by
the Borrowers and the Lenders (and without prejudice to the rights of the
Lenders under Article IX), all amounts payable under Sections 2.12, 2.13, 2.14
and 2.17 shall be borne by the Borrowers equally, except when the amount
payable relates to a particular Loan, in which case the amount payable shall
be the obligation of the Borrower to which that Loan was made.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent from any Borrower to pay fully all amounts of
principal, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due from such Borrower
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of accrued interest and fees then due from such Borrower to such
parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans
and accrued interest thereon than the proportion received by any
33
other Lender, then the Lender receiving such greater proportion shall purchase
(for cash at face value) participations in the Revolving Loans of other
Lenders to the extent necessary so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Loans;
provided that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall
not be construed to apply to any payment made by any Borrower pursuant to and
in accordance with the express terms of this Agreement or any payment obtained
by a Lender as consideration for the assignment of or sale of a participation
in any of its Loans to any assignee or participant, other than to a Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). Each Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against such Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Company prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the
applicable Borrower will not make such payment, the Administrative Agent may
assume that such Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders
the amount due. In such event, if such Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender with accrued interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at, to the extent permitted by law, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(b) or 2.15(d), then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent for the account of
such Lender to satisfy such Lender's obligations under such Sections until all
such unsatisfied obligations are fully paid.
SECTION 2.16. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.12 or 2.17, or if any
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for
34
the account of any Lender pursuant to Section 2.14, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.12, 2.14 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. Each
Borrower hereby agrees to pay all reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.12 or
additional interest under section 2.17, or if any Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.14, or if any Lender defaults in
its obligation to fund Loans hereunder, then the Company may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in Section 10.04), all its
interests, rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) the Company shall have
received the prior written consent of the Administrative Agent, which consent
shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Company (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation
under Section 2.12, payments required to be made pursuant to Section 2.14 or
additional interest required to be paid pursuant to Section 2.17, such
assignment will result in a reduction in such compensation, payments or
additional interest. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Company to require such
assignment and delegation cease to apply. Nothing in Section 2.16 shall limit
any right or remedy any Borrower may have against any defaulting Lender.
SECTION 2.17. 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 Eurocurrency Loans in any 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
35
accordance with the formula and in the manner set forth in Exhibit F 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 Statutory Reserve Rate or the Mandatory Costs Rate) in respect of any
of such Lender's Eurocurrency Loans in any Foreign Currency, such Lender may
require the relevant Borrower to pay, contemporaneously with each payment of
interest on each of such Lender's Eurocurrency 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 and notified to the relevant
Borrower (with a copy to the Administrative Agent) in the form of a
certificate setting forth such additional interest 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.
(d) Failure or delay on the part of any Lender to demand additional
interest pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such additional interest; provided that no Borrower
shall be required to pay additional interest to a Lender pursuant to this
Section for any increased costs incurred more than 90 days prior to the date
that such Lender notifies the relevant Borrower of the circumstances giving
rise to such increased costs; provided further that, if the circumstances
giving rise to such increased costs or reductions is retroactive, then the
90-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.18. Borrowing Subsidiaries. On or after the Closing Date,
the Company may designate any Wholly Owned Subsidiary of the Company as a
Borrowing Subsidiary by delivery to the Administrative Agent of a Borrowing
Subsidiary Agreement executed by such Subsidiary and the Company, and upon
such delivery such Subsidiary shall for all purposes of this Agreement be a
Borrowing Subsidiary and a party to this Agreement. Upon the execution by the
Company and delivery to the Administrative Agent of a Borrowing Subsidiary
Termination with respect to any Borrowing Subsidiary, such Subsidiary shall
cease to be a Borrowing Subsidiary and a party to this Agreement; provided
that no Borrowing Subsidiary Termination will become effective as to any
Borrowing Subsidiary (other than to terminate such Borrowing Subsidiary's
right to make further Borrowings under this Agreement) at a time when any
principal of or interest on any
36
Loan to such Borrowing Subsidiary shall be outstanding hereunder. Promptly
following receipt of any Borrowing Subsidiary Agreement or Borrowing
Subsidiary Termination, the Administrative Agent shall send a copy thereof to
each Lender.
ARTICLE III
Representations and Warranties
Each of the Company and the Borrowing Subsidiaries represents and
warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each Borrower and its
subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, is qualified to do
business in, and is in good standing in, every jurisdiction where such
qualification is required except where the failure to so qualify, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.02. Authorization; Enforceability. The Transactions are
within each Borrower's corporate powers and have been duly authorized by all
necessary corporate and, if required, shareholder action. This Agreement and
each other Loan Document has been, and each Note when delivered hereunder will
have been, duly executed and delivered by each Borrower party thereto. This
Agreement and each other Loan Document constitutes, and each Note when
delivered hereunder will constitute, a legal, valid and binding obligation of
the Borrowers, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect or where failure to do so,
individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect, (b) will not violate any applicable material law
or regulation, (c) will not violate the charter, by-laws or other
organizational documents of any Borrower or any order of any Governmental
Authority, (d) will not violate or result in a default under any indenture,
agreement or other instrument binding upon any Borrower or any of its
Subsidiaries or its assets, and (e) will not result in the creation or
imposition of any Lien on any asset of any Borrower or any of its Subsidiaries
(other than Permitted Liens).
37
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
The Company has heretofore furnished to the Lenders its consolidated balance
sheet and statement of income, stockholders' equity and accumulated other
comprehensive loss and cash flows as of and for the fiscal year ended December
31, 2000, reported on by PriceWaterhouseCoopers LLP, independent public
accountants. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of
the Company and its consolidated Subsidiaries as of such dates and for such
periods in accordance with GAAP.
(b) Since December 31, 2000, there has been no material adverse
change in the business, assets, operations or condition, financial or
otherwise, of the Company and the Subsidiaries, taken as a whole.
SECTION 3.05. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect or (ii) that involve this
Agreement, any other Loan Document or the Transactions and could reasonably be
expected adversely to affect the enforceability of any material provision of
this Agreement or any other Loan Document.
(b) Except with respect to matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Company nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii)
has become subject to any Environmental Liability based on damage to the
environment, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
SECTION 3.06. Compliance with Laws and Agreements. The Company and
each Subsidiary is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect. No Default has occurred
and is continuing.
SECTION 3.07. Investment and Holding Company Status. Neither the
Company nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b)
a "holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
38
SECTION 3.08. Taxes. Each of the Company and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Company or such Subsidiary, as
applicable, has set aside on its books adequate reserves to the extent
required by GAAP or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.09. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not,
as of the date of the most recent financial statements reflecting such
amounts, exceed the fair market value of the assets of such Plan by an amount
that could reasonably be expected to result in a Material Adverse Effect, and
the present value of all accumulated benefit obligations of all underfunded
Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed the fair market value of
the assets of all such underfunded Plans by an amount that could reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.10. Disclosure. None of the reports, financial statements,
certificates or other information furnished by or on behalf of the Company to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished), taken as a whole, contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Company represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time, it
being recognized by the Administrative Agent and the Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may
differ from the projected results.
SECTION 3.11. Federal Reserve Regulations. No part of the proceeds
of any Loans will be used in violation of the provisions of the regulations of
Regulation U of the Board. Not more than 25% of the assets subject to the
restrictions of Section 6.02 or 6.04 will at any time consist of Margin Stock
(as defined in Regulation U of the Board).
39
ARTICLE IV
Conditions
SECTION 4.01. Closing Date. On the date hereof (the "Closing Date")
each of the following conditions shall have been satisfied (or waived in
accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed
on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a
counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Closing Date) of (i) ▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Counsel of the Company,
substantially in the form of Exhibit C-1 and (ii) Canadian counsel of the
Company, substantially in the form of Exhibit C-2, and in each case
covering such other matters relating to the Borrowers, this Agreement or
the Transactions as the Required Lenders shall reasonably request. The
Borrowers hereby request such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing (to the
extent such concept is relevant to such Person in its jurisdiction of
organization) of each Borrower, the authorization of the Transactions and
any other legal matters relating to the Borrowers, this Agreement, any
other Loan Documents or the Transactions, all in form and substance
reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Closing Date and signed by the President, a Vice President or a
Financial Officer of the Company, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.03.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Closing Date, including, to
the extent invoiced, reimbursement or payment of all reasonable
out-of-pocket expenses required to be reimbursed or paid by the Borrowers
hereunder.
SECTION 4.02. Effective Date. The obligations of the Lenders to make
Loans hereunder shall not become effective until the date on which each of the
following conditions shall have been satisfied (or waived in accordance with
Section 10.02):
40
(a) Bidco shall have accepted the ordinary shares of Gulf tendered
in the Offer in accordance with applicable law and the terms of the
Support Agreement without modification or waiver of any material term or
condition of the Offer (other than any modification or waiver that would
not have a material adverse effect on the current credit quality of the
Company), and Bidco shall have accepted pursuant to the Offer a
sufficient percentage of the outstanding ordinary shares of Gulf to
permit the acquisition of the remaining Gulf ordinary shares through a
Compulsory Acquisition or Subsequent Acquisition Transaction in
accordance with applicable law.
(b) After giving effect to the completion of the Offer and the other
transactions contemplated in connection with the Acquisition, the assets
and liabilities of the Company and Gulf shall be consistent in all
material respects with the pro forma financial information heretofore
delivered to the Administrative Agent, and the Company and its
Subsidiaries (including Gulf and its subsidiaries) shall have outstanding
no indebtedness other than (i) indebtedness existing under or permitted
by the Company's Existing Credit Agreements and (ii) short-term
indebtedness issued under the Company's commercial paper program.
(c) All requisite governmental authorities and third parties shall
have approved or consented to the Acquisition to the extent such
approvals or consents are required under applicable laws or agreements or
otherwise and are material, all applicable appeal periods shall have
expired and there shall be no governmental or judicial action, actual or
threatened, that could reasonably be expected to restrain, prevent or
impose materially burdensome conditions on the Acquisition or the other
transactions contemplated hereby. There shall be no litigation or
administrative action that could reasonably be expected to have a
Material Adverse Effect.
(d) Any amendment, waiver or other modification of the Existing
Credit Agreements required in connection with the Acquisition, this
Agreement or the transactions contemplated hereby shall have become
effective and shall be satisfactory in all respects to the Administrative
Agent.
(e) The Administrative Agent shall have received a certificate,
dated the date of such initial Borrowing and signed by the President, a
Vice President or a Financial Officer of the Company, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.03.
(f) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all reasonable
out-of-pocket
41
expenses required to be reimbursed or paid by the Borrowers hereunder.
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions
is satisfied (or waived pursuant to Section 10.02) at or prior to 11:59 p.m.,
Houston, Texas time, on November 30, 2001 (and, in the event such conditions
are not so satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.03. Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing which increases the aggregate
principal amount of the outstanding Loans of any Lender is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of the Borrowers set forth in
the Loan Documents shall be true and correct in all material respects on
and as of the date of such Borrowing except to the extent that such
representations and warranties relate to a prior date in which case such
representations and warranties shall be true as of such prior date.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
Each Borrowing that increases the aggregate principal amount of the
outstanding Loans of any Lender shall be deemed to constitute a representation
and warranty by the Company on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.
SECTION 4.04. Initial Borrowing by each Borrowing Subsidiary. The
obligation of each Lender to make Loans to any Borrowing Subsidiary (other
than the Borrowing Subsidiaries party hereto on the date hereof) is subject to
the satisfaction (or waiver in accordance with Section 10.02) of the following
conditions:
(a) The Administrative Agent (or its counsel) shall have received
such Borrowing Subsidiary's Borrowing Subsidiary Agreement, duly executed
by all parties thereto.
(b) The Administrative Agent shall have received such documents and
certificates, including such opinions of counsel, as the Administrative
Agent or its counsel may reasonably request relating to the organization,
existence and good standing (to the extent such concept is relevant to
such Person in its jurisdiction of organization) of such Borrowing
Subsidiary, the authorization of the Transactions
42
insofar as they relate to such Borrowing Subsidiary and any other legal
matters reasonably relating to such Borrowing Subsidiary, its Borrowing
Subsidiary Agreement or such Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full, the Company covenants and agrees with the Lenders as
to itself and its Subsidiaries and each Borrowing Subsidiary covenants and
agrees with the Lenders as to itself and its subsidiaries that:
SECTION 5.01. Financial Statements and Other Information. The
Company will furnish to the Administrative Agent and each Lender:
(a) within 95 days after the end of each fiscal year of the Company,
its audited consolidated balance sheet and related statement of income,
stockholders' equity and accumulated other comprehensive loss and cash
flows as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported
on by PriceWaterhouseCoopers LLP or other independent public accountants
of recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as
to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the
financial condition and results of operations of the Company and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied except for changes concurred in by the Company's
independent public accountants, which financial statements may be
furnished by delivery of any public filings pursuant to clause (d) of
this Section 5.01 containing such financial statements;
(b) within 50 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company, its consolidated balance
sheet and related statements of income, stockholders' equity and
accumulated other comprehensive loss and cash flows as of the end of and
for such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet,
as of the end of) the previous fiscal year, all certified by one of its
Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Company and its
consolidated Subsidiaries on a consolidated basis in
43
accordance with GAAP consistently applied except for changes concurred in
by the Company's independent public accountants, subject to normal
year-end audit adjustments and the absence of footnotes, which financial
statements may be furnished by delivery of any public filings pursuant to
clause (d) of this Section 5.01 containing such financial statements;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Company (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto and (ii) setting forth
reasonably detailed calculations demonstrating compliance with Section
6.07;
(d) promptly after the same become publicly available, copies of all
periodic and other reports and proxy statements filed by the Company or
any Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by
the Company to its shareholders generally, as the case may be; and
(e) promptly following any request therefor, such other information
regarding the operations, business and financial condition of the Company
or any Material Subsidi ary, or compliance with the terms of this
Agreement, as the Administrative Agent or any Lender through the
Administrative Agent may reasonably request.
SECTION 5.02. Notices of Material Events. The Company will furnish
to the Administrative Agent and each Lender written notice of the following
promptly after any Financial Officer obtains actual knowledge thereof:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
the Company or any Subsidiary that could reasonably be expected to result
in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected
to result in a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
44
Each notice delivered under this Section shall be accompanied by a statement
of a Financial Officer or other Financial Officer of the Company setting forth
the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Company will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises
material to the conduct of its business; provided that the foregoing shall not
prohibit (a) any merger, consolidation, liquidation or dissolution permitted
under Section 6.04 or (b) any failure to preserve, renew or keep in full force
and effect the existence of any Subsidiary or any right, license, permit,
asset, privilege or franchise of the Company or any Subsidiary if such failure
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.04. Payment of Obligations. The Company will, and will
cause each of its Subsidiaries to, pay its obliga tions, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect
before the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Company or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected
to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Company
will, and will cause each of its Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear and force majeure excepted, unless the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect, and (b) maintain, with financially sound and reputable
insurance companies, insurance in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The Company
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries are made of all dealings
and transactions in relation to its business and activities to the extent
necessary to prepare financial statements in accordance with GAAP. The Company
will, and will cause each of its Material Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender through
the Administrative Agent, upon reasonable prior notice and, so long as no
Event of Default shall have occurred and be continuing, at such Person's
expense, subject to Section 10.12, to visit and inspect its properties, to
45
examine and make extracts from its books and records and to discuss its
affairs, finances and condition with its officers and independent accountants,
all at such reasonable times and as often as reasonably requested; provided
that the Company shall have the right to have a representative present at all
such times.
SECTION 5.07. Compliance with Laws and Agreements. The Company will,
and will cause each of its Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority, including Environmental
Laws and ERISA, applicable to it or its property, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be
used only to finance the Acquisition (or to provide liquidity in connection
with issuances and sales of commercial paper to finance the Acquisition) and
to pay related fees and expenses. No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations U and X.
SECTION 5.09. Completion of Acquisition. The Company shall use its
best efforts to complete the Acquisition (including a Compulsory Acquisition
or Subsequent Acquisition Transaction) as soon as practicable.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full, the Company covenants and agrees with the Lenders as to itself and its
Subsidiaries and each Borrowing Subsidiary covenants and agrees with the
Lenders as to itself and its subsidiaries that:
SECTION 6.01. Subsidiary Indebtedness. The Company will not permit
any Subsidiary to create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on May 11, 1999 or incurred pursuant to
commitments existing on May 11, 1999 in an amount not in excess of
US$350,000,000 and extensions, renewals or replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof or commitments to lend in respect thereof;
(c) Indebtedness of any Subsidiary to the Company or any other
Subsidiary;
46
(d) Indebtedness of any Subsidiary incurred to finance the
acquisition, construction or improvement by any Subsidiary of any fixed
or capital assets and related inventory and intangible assets, including
Capital Lease Obligations and any Indebtedness incurred or assumed in
connection with the acquisition, construction or improvement of any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof; provided that such Indebtedness is incurred prior to or within
365 days after such acquisition or the later of the completion of such
construction or improvement or the date of commercial operation of the
assets constructed or improved;
(e) Indebtedness of any Person that becomes a Subsidiary after May
11, 1999; provided that such Indebtedness exists at the time such Person
becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary;
(f) Indebtedness of any Subsidiary as an account party in respect of
letters of credit backing obligations of any Subsidiary;
(g) Indebtedness of any Subsidiary incurred to fund the cost of
exploration, drilling or development of any property of the Company or
any Subsidiary; and
(h) Indebtedness consisting of industrial development, pollution
control or other revenue bonds or similar instruments issued or
guaranteed by any Governmental Authority;
(i) Indebtedness secured by Liens permitted under Section 6.02 (l)
and (m); and
(j) Other Indebtedness not expressly permitted by clauses (a)
through (h) above; provided that the sum of (i) the Indebtedness
permitted by this clause (j), (ii) the aggregate principal amount of
outstanding obligations secured by Liens permitted by Section 6.02(o) and
(iii) the Attributable Debt permitted by Section 6.03(b) does not at any
time exceed 15% of Consolidated Net Tangible Assets.
SECTION 6.02. Liens. The Company will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, except:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, maritime and other like Liens imposed by law, arising in the
ordinary course of business;
47
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary
course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clauses (j) or (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or materially
interfere with the ordinary conduct of business of the Company and the
Subsidiaries taken as a whole;
(g) any Lien on any property or asset of the Company or any
Subsidiary existing on May 11, 1999 (or an improvement or accession
thereto or proceeds therefrom); provided that (i) such Lien shall not
apply to any other property or asset of the Company or any Subsidiary and
(ii) such Lien shall secure only those obligations which it secures on
May 11, 1999 and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof;
(h) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may
be, (ii) such Lien shall not apply to any other property or assets of the
Company or any Subsidiary other than improvements and accessions thereto
and proceeds thereof and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date
such Person becomes a Subsidiary, as the case may be, and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(i) Liens on fixed or capital assets and related inventory and
intangible assets acquired, constructed or improved by the Company or any
Subsidiary; provided that (i) such Liens secure Indebtedness permitted by
clause (d) of Section 6.01, (ii) such Liens and the Indebtedness secured
thereby are incurred prior to or within 365 days after such acquisition
or the later of the completion of
48
such construction or improvement or the date of commercial operation of
the assets constructed or improved, (iii) the Indebtedness secured
thereby does not exceed the cost of acquiring, constructing or improving
such fixed or capital assets and (iv) such Liens shall not apply to any
other property or assets of the Company or any Subsidiary;
(j) Liens on assets securing Indebtedness incurred to fund the cost
of exploration, drilling and development of such assets;
(k) Liens securing industrial development, pollution control or
other revenue bonds or similar instruments issued or guaranteed by any
Governmental Authority;
(l) Liens in favor of any Governmental Authority to secure
obligations pursuant to the provisions of any contract or statute;
(m) Liens arising as a result of the sale or transfer of (i) oil,
gas or other minerals in place for a period of time until, or in an
amount that, the purchaser will realize therefrom a specified amount of
money (however determined) or a specified amount of such minerals, or
(ii) any other interest in property of the character commonly referred to
as a "production payment";
(n) Liens to secure obligations of a Subsidiary to the Company or
any other Subsidiary; and
(o) Liens not expressly permitted by clauses (a) through (n) above;
provided that the sum of (i) the Indebtedness permitted by Section
6.01(j), (ii) the aggregate principal amount of outstanding obligations
secured by Liens permitted by this clause (o) and (iii) the Attributable
Debt permitted by Section 6.03(b) does not at any time exceed 15% of
Consolidated Net Tangible Assets.
SECTION 6.03. Sale and Leaseback Transactions. The Company will not,
and will not permit any of its Subsidiaries to, enter into any Sale-Leaseback
Transaction except:
(a) Sale-Leaseback Transactions to which the Company or any
Subsidiary was a party as of May 11, 1999; and
(b) other Sale-Leaseback Transactions; provided that the sum of (i)
the Indebtedness permitted by Section 6.01(j), (ii) the aggregate
principal amount of outstanding obligations secured by Liens permitted by
Section 6.02(o) and (iii) the aggregate Attributable Debt in respect of
Sale-Leaseback Transactions permitted by this clause (b) does not at any
time exceed 15% of Consolidated Net Tangible Assets.
SECTION 6.04. Fundamental Changes. (a) The Company will not merge
into or consolidate with any other Person, or
49
permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions and including by means of any merger or sale of capital stock or
otherwise) all or substantially all of its assets (whether now owned or
hereafter acquired), or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing, any Person may merge with or into or consolidate
with the Company if (i) the Company is the surviving Person or the surviving
Person (a) is organized under the laws of any G-10 Country or any State of any
G-10 Country and (b) assumes all of the Company's obligations under this
Agreement and (ii) after giving effect to such transaction no Default shall
exist.
(b) The Company will not individually, nor will it and its
Subsidiaries when taken as a whole, engage in any other business if as a
result the Company and its Subsidiaries would not be primarily engaged in the
energy business.
SECTION 6.05. Transactions with Affiliates. The Company will not,
and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire
any property or assets from, or otherwise engage in any other transactions
with, any of its Affiliates, except (a) transactions existing on May 11, 1999,
(b) in the ordinary course of business at prices and on terms and conditions
not less favorable to the Company or such Subsidiary than could be obtained on
an arm's-length basis from unrelated third parties, (c) transactions between
or among the Company and its Subsidiaries and their respective employee
benefit plans and related trusts not involving any other Affiliate and (d)
transactions among the Company and the Subsidiaries or among the Subsidiaries.
SECTION 6.06. Restrictive Agreements. The Company will not, and will
not permit any of its Subsidiaries to, directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its capital
stock or other equity interests or to make or repay loans or advances to the
Company or any other Subsidiary, other than (a) restrictions and conditions
imposed by law or by this Agreement, (b) restrictions and conditions existing
on May 11, 1999, (c) customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary or its assets pending such
sale; provided such restrictions and conditions apply only to the Subsidiary
or its assets that is to be sold and such sale is permitted hereunder, (d)
restrictions applicable to project finance or special purpose Subsidiaries,
the obligations of which are not guaranteed by (other than pursuant to
temporary construction or similar guarantees) and have only limited recourse
to the Company and its other Subsidiaries (other than subsidiaries of such
project finance or special purpose subsidiaries), (e) customary provisions in
leases and other
50
contracts restricting the assignment thereof, (f) restrictions or conditions
relating to any assets acquired after May 11, 1999, so long as such
restrictions relate only to the assets so acquired and are not created in
anticipation of such acquisition, (g) restrictions and conditions relating to
any Indebtedness of any Subsidiary existing as of the date on which such
Subsidiary was acquired by the Company or any Subsidiary (other than
Indebtedness incurred in anticipation of such acquisition), (h) restrictions
and conditions agreed to in connection with a refinancing of Indebtedness
under agreements containing restriction or conditions referred to in the
foregoing clause (b), so long as the restrictions and conditions contained in
any such refinancing agreement are not, in the good faith judgment of the
Company, more restrictive, taken as a whole, than the those contained in such
original agreements, (i) restrictions and conditions constituting restrictions
on the sale or other disposition of any property securing Indebtedness as a
result of a Lien permitted by Section 6.02 on such property, (j) customary
restrictions on cash deposits or other assets imposed by customers under
contracts entered into in the ordinary course of business, and (k)
restrictions contained in agreements or instruments relating to Indebtedness
which prohibit the transfer of all or substantially all of the assets of the
obligor thereunder unless the transferee shall assume the obligations of the
obligor under such agreement or instrument.
SECTION 6.07. Debt to Capitalization Ratio. The Company will not
permit the ratio of Consolidated Total Balance Sheet Indebtedness to
Consolidated Total Capitalization during any of the periods set forth below to
exceed the ratio set forth opposite such period:
Period Ratio
Through March 31, 2002 0.650:1.00
Thereafter 0.600:1.00
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) any principal of any Loan shall not be paid when and as the same
shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) any accrued interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article) payable
under this Agreement, shall not be paid when and as the same shall become
due and payable, and such failure shall continue unremedied for a period
of 10 days;
51
(c) any representation or warranty made or deemed made by or on
behalf of any Borrower in or in connection with this Agreement or any
amendment or modification hereof or waiver hereunder, or in any report,
certificate, financial statement or other document furnished pursuant to
or in connection with this Agreement or any amendment or modification
hereof or waiver hereunder, shall prove to have been incorrect in any
respect material to the rights or interests of the Lenders when made or
deemed made;
(d) any Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to
the Company's existence only) or 5.08 or in Article VI;
(e) any Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days (or, if such failure is
capable of being cured and such Borrower is proceeding with diligence to
effect a cure, 60 days) after notice thereof from the Administrative
Agent to the Company (which notice will be given at the request of the
Required Lenders);
(f) Material Indebtedness of the Company and/or its Subsidiaries
shall (i) not be paid at maturity (or, if any grace periods shall be
applicable, within such grace periods), (ii) be declared to be due and
payable prior to the stated maturity thereof or (iii) be required to be
prepaid, redeemed or repurchased, other than by a regularly scheduled
required prepayment, redemption or repurchase, prior to the stated
maturity thereof;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Company or any Material Subsidiary or its debts,
or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Company
or any Material Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(h) the Company or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in
clause (g) of this Article, (iii) apply for or
52
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any
Material Subsidiary or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it
in any such proceeding, or (v) make a general assignment for the benefit
of creditors;
(i) the Company or any Material Subsidiary shall become unable,
admit in writing its inability or fail generally to pay its debts as they
become due;
(j) any one judgment for the payment of money in an amount not
covered by insurance in excess of US$100,000,000, or one or more
judgements for the payment of money in an aggregate amount not covered by
insurance in excess of US$150,000,000, shall be rendered against the
Company, any Subsidiary or any combination thereof and in either case
shall remain undischarged for a period of 30 consecutive days during
which execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets of
the Company or any Subsidiary to enforce any such judgment or judgments;
(k) an ERISA Event shall have occurred that, in the good faith
opinion of the Required Lenders, when taken together with all other ERISA
Events that have occurred, would reasonably be expected to result in a
Material Adverse Effect; or
(l) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Company
described in clause (g) or (h) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent, at the request
of the Required Lenders, shall, by notice to the Company, take either or both
of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the the Borrowers and the
Company accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest, notice of intent to accelerate or other notice
of any kind, all of which are, to the extent permitted by applicable law,
hereby waived by the Company; and in case of any event with respect to the
Company described in clause (g) or (h) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of
the Borrowers accrued hereunder, shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are
53
hereby waived by the Company; provided, however, that notwithstanding anything
to the contrary contained herein, the Commitments shall terminate immediately
and simultaneously upon any acceleration of the Loans under clause (ii) above,
without any further action by any party hereto.
ARTICLE VIII
The Agent
Each of the Lenders hereby irrevocably appoints the Agent as its
agent and authorizes the Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental
thereto.
The bank serving as the Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise
the same as though it were not an Agent, and such bank and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of
business with the Company, any Borrower or any Subsidiary or other Affiliate
thereof as if it were not an Agent hereunder.
The Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) the Agent shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Agent shall not have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated by the Loan Documents that the Agent is required
to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.02), and (c) except as expressly set forth in the Loan
Documents, the Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Company,
any Borrower or any Subsidiary that is communicated to or obtained by the bank
serving as Agent or any of its Affiliates in any capacity. The Agent shall not
be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.02) or in the absence of its own gross negligence or wilful misconduct. The
Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Agent by the Company or a Lender, and
the Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or in connection with any Loan
Document, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan
54
Document, (iv) the validity, enforceability, effectiveness or genuineness of
any Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Agent.
The Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it, to be genuine
and to have been signed or sent by the proper Person. The Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. The Agent may consult with legal counsel (who may be counsel for any
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
The Agent may perform any and all of its duties and exercise its
rights and powers by or through any one or more sub- agents appointed by the
Agent. The Agent and any such sub-agent may perform any and all of its duties
and exercise its rights and powers through its respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of the Agent and any such sub-agent, and
shall apply to its activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, the Agent may resign at any time by notifying the
Lenders and the Company. Upon any such resignation, the Required Lenders shall
have the right to appoint a successor, which appointment shall be approved by
the Company so long as no Event of Default has occurred and is continuing. If
no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which appointment shall be approved by the
Company so long as no Event of Default has occurred and is continuing. Upon
the acceptance of its appointment as Agent hereunder by a successor, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Company to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Company and such successor.
After the Agent's resignation hereunder, the provisions of this Article and
Section 10.03 shall continue in effect for the benefit of such retiring Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while it was acting as Agent.
55
Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender
and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
None of the Co-Documentation Agents nor the Co- Syndication Agents,
in their capacity as a syndication agent or a documentation agent, shall have
any duties or responsibilities under this Agreement.
ARTICLE IX
Guarantee
In order to induce the Lenders to extend credit to the Borrowing
Subsidiaries hereunder, the Company hereby irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, the Obligations
of the Borrowing Subsidiaries. The Company further agrees that the due and
punctual payment of the Obligations of the Borrowing Subsidiaries may be
extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee hereunder
notwithstanding any such extension or renewal of any Obligation.
The Company waives presentment to, demand of payment from and
protest to any Borrowing Subsidiary of any of the Obligations, and also waives
notice of acceptance of its obligations and notice of protest for nonpayment.
The obligations of the Company hereunder shall not be affected by (a) the
failure of any Lender to assert any claim or demand or to enforce any right or
remedy against any Borrowing Subsidiary under the provisions of this Agreement
any Borrowing Subsidiary Agreement, any other Loan Document or otherwise; (b)
any extension or renewal of any of the Obligations; (c) any rescission,
waiver, amendment or modification of, or release from, any of the terms or
provisions of this Agreement, any Borrowing Subsidiary Agreement or any other
Loan Document or agreement; (d) the failure or delay of any Lender to exercise
any right or remedy against any other guarantor of the Obligations; (e) the
failure of any Lender to assert any claim or demand or to enforce any remedy
under any Loan Document or any other agreement or instrument; (f) any default,
failure or delay, wilful or otherwise, in the performance of the Obligations;
or (g) any other act, omission or delay to do any other act which may or might
in any manner or to any extent vary the risk of the Company or otherwise
operate as a discharge of the Company as a matter of
56
law or equity or which would impair or eliminate any right of the Company to
subrogation.
The Company further agrees that its guarantee 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 or Subsidiary or any other Person.
The obligations of the Company 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.
The Company 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 any Lender upon the bankruptcy or reorganization of any
Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Lender may have at law or in equity against the Company by
virtue hereof, upon the failure of any Borrowing Subsidiary to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, the Company hereby
promises to and will, upon receipt of written demand by the Administrative
Agent, forthwith pay, or cause to be paid, to the Administrative Agent for
distribution to the Lenders in cash an amount equal the unpaid principal
amount of such Obligation. The Company 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
legal prohibition, disruption of currency or foreign exchange markets, war or
civil disturbance or other event, payment of such Obligation in such currency
or at such place of payment shall be impossible or, in the reasonable judgment
of any Lender, not consistent with the protection of its rights or interests,
then, at the election of such Lender, the Company 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 (including losses or expenses resulting from
fluctuations in exchange rates) that it shall sustain as a result of such
alternative payment.
Upon payment in full by the Company of any Obligation of any
Borrowing Subsidiary, each Lender shall, in a reasonable manner, assign to the
Company the amount of such Obligation owed
57
to such Lender and so paid, such assignment to be pro tanto to the extent to
which the Obligation in question was discharged by the Company, or make such
disposition thereof as the Company shall direct (all without recourse to any
Lender and without any representation or warranty by any Lender). Upon payment
by the Company of any sums as provided above, all rights of the Company
against any Borrowing Subsidiary 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 owed by such Borrowing Subsidiary to the Lenders (it being
understood that, after the discharge of all the Obligations due and payable
from such Borrowing Subsidiary, such rights may be exercised by the Company
notwithstanding that such Borrowing Subsidiary may remain contingently liable
for indemnity or other Obligations).
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or nationally recognized overnight courier service, mailed
by certified or registered mail or sent by telecopy, as follows:
(a) if to the Company, to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇, Attention of the Treasurer (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to any Borrowing Subsidiary, to it in care of the Company as
provided in paragraph (a) above;
(c) if to the Administrative Agent, to The Chase Manhattan Bank
Agency Services Group, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy
to The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇)
and, with respect to any Borrowing denominated in a Foreign Currency,
with a copy to The Chase Manhattan Bank, 9 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. 44-207-
777-2360);and
(d) if to any other Lender, to it at its address (or telecopy
number) set forth on Schedule 10.01.
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the
date of receipt.
58
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
or under any other Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent and the Lenders hereunder
and under any other Loan Document are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision
of any Loan Document or consent to any departure by any Borrower therefrom
shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall
not be construed as a waiver of any Default, regardless of whether the
Administrative Agent, any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into by the Company and the
Required Lenders or by the Company and the Administrative Agent with the
consent of the Required Lenders and, in the case of any other Loan Document,
each applicable Borrower (or the Company on behalf of such Borrower); provided
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any
Loan or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the scheduled date of payment of the principal amount of any Loan, or
any accrued interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.15(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section or
the definition of "Required Lenders" or any other provision of any Loan
Document specifying the number or percentage of Lenders required to waive,
amend or modify any rights hereunder or make any determination or grant any
consent hereunder or (vi) release the Company from its obligations under
Article IX, without the written consent of each Lender; provided further that
no such agreement shall amend, modify or otherwise affect the rights or duties
of the Administrative Agent hereunder without the prior written consent of the
Administrative Agent.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The Borrowers
shall pay (i) all reasonable out-of-pocket expenses incurred by the Agent and
its Affiliates (and the Lenders for documentary taxes), including the
reasonable fees,
59
charges and disbursements of counsel for the Agent, in connection with the
arrangement and syndication of the credit facilities provided for herein, the
preparation, execution and delivery of the credit documentation and any
amendments, modifications or waivers of the provisions hereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii)
any unusual or extraordinary reasonable out-of-pocket expenses of the Agent
and its Affiliates associated with the administration of the Loan Documents as
long as the incurrence of such expenses is approved by the Company before such
expenses are incurred and (iii) all reasonable out-of-pocket expenses incurred
by the Agent or any Lender, including the reasonable fees, charges and
disbursements of counsel, in connection with the enforcement of its rights
under this Agreement or any other Loan Document.
(b) The Company shall indemnify the Agent and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called
an "Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related reasonable expenses,
including the reasonable fees, charges and disbursements of any counsel for
any Indemnitee, incurred by or asserted against any Indemnitee as a result of
(i) the execution or delivery of any Loan Document or any agreement or
instrument contemplated thereby, the performance by the parties to the Loan
Documents of their respective obligations thereunder or the consummation of
the Transactions or any other transactions contemplated hereby, (ii) any Loan
or the use of the proceeds therefrom, (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by
the Company or any of its Subsidiaries, or any Environmental Liability related
in any way to the Company or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding directly relating
to any of the foregoing, whether based on contract, tort or any other theory
and regardless of whether any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses resulted
from the gross negligence or wilful misconduct of such Indemnitee. Each
Indemnitee agrees that it will contest any indemnified claim if requested by
the Company, in a manner reasonably directed by the Company, with counsel
selected by the Indemnitee and approved by the Company, which approval shall
not be unreasonably withheld. Any Indemnitee that proposes to settle or
compromise any indemnified claim for which the Borrowers may be liable for
payment of indemnity shall give the Company written notice of the terms of
such proposed settlement or compromise reasonably in advance of settling or
compromising such claim or proceeding and shall obtain the Company's prior
written consent, which consent shall not be unreasonably withheld; provided
that nothing in this sentence or the proceeding sentence shall restrict the
right of any person to settle or compromise any claim for which indemnity
would be otherwise available on any terms if such person waives its right to
indemnity from the Borrowers in respect of such claim.
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(c) To the extent that the Borrowers fail to pay any amount required
to be paid by them to the Agent, under paragraph (a) or (b) of this Section,
each Lender severally agrees to pay to the Agent such Lender's Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the Agent in
its capacity as such.
(d) To the extent permitted by applicable law, no Borrower shall
assert, and each hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with,
or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions or any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 10.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that no
Borrower may assign or otherwise transfer any of its rights or obligations
hereunder or under any Borrowing Subsidiary Agreement without the prior
written consent of each Lender (and any attempted assignment or transfer by
any Borrower without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); provided that (i)
except in the case of an assignment to a Lender or a Lender Affiliate, each of
the Company and the Administrative Agent must give their prior written consent
to such assignment (which consent shall not be unreasonably withheld on or
after the date nine months after the date hereof), (ii) except in the case of
an assignment to a Lender or a Lender Affiliate or an assignment of the entire
remaining amount of the assigning Lender's Commitment, the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment
is delivered to the Administrative Agent) shall not be less than US$10,000,000
unless each of the Company and the Administrative Agent otherwise consent,
(iii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's
61
rights and obligations under this Agreement, except that this clause (iii) the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation
fee of US$3,500, and (iv) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire; and
provided further that any consent of the Company otherwise required under this
paragraph shall not be required if an Event of Default under clause (g) or (h)
of Article VII has occurred and is continuing. Subject to acceptance and
recording thereof pursuant to paragraph (d) of this Section, from and after
the effective date specified in each Assignment and Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.12, 2.13, 2.14, 2.17 and
10.03)(but only to the extent such Lender notifies the Company of any claim
under such Section within 90 days after it obtains knowledge thereof). Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
each Borrower, shall maintain at one of its offices in the United States a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall
be conclusive, and 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,
notwithstanding notice to the contrary. The Register shall be available for
inspection by any Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for
62
purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(e) Any Lender may, without the consent of any Borrower or the
Administrative Agent, sell participations to one or more banks or other
entities (each a "Participant") in all or a portion of such Lender's rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrowers, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce the Loan Documents and to approve any amendment, modification or
waiver of any provision of the Loan Documents; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 10.02(b) that affects such Participant. Subject to
paragraph (f) of this Section, each Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.12, 2.13, 2.14 and 2.17 to the
same extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 10.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.15(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.12, 2.14 or 2.17 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Company's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.14 unless the Company is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Company, to
comply with Section 2.14(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender to a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
(h) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special
63
purpose funding vehicle (an "SPC") of such Granting Lender, identified as such
in writing from time to time by the Granting Lender to the Administrative
Agent and the Borrowers, the option to provide to the Borrowers all or any
part of any Loan that such Granting Lender would otherwise be obligated to
make to the Borrowers pursuant to Section 2.01, provided that (i) nothing
herein shall constitute a commitment to make any Loan by any SPC, (ii) if an
SPC elects not to exercise such option or otherwise fails to provide all or
any part of such Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof (iii) such Granting Lender's other
obligations under this Agreement shall remain unchanged, (iv) such Granting
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (v) the Borrowers, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with
such Granting Lender in connection with such Granting Lender's rights and
obligations under this Agreement. The making of a Loan by an SPC hereunder
shall utilize the Commitment of its Granting Lender to the same extent, and as
if, such Loan were made by its Granting Lender. Each party hereto hereby
agrees that no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with the
related Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding senior indebtedness of any SPC, it will not
institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of the United States or any
State thereof. In addition, notwithstanding anything to the contrary contained
in this Section 10.04, any SPC may (i) with notice to, but without the prior
written consent of, the Borrowers and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests
in any Loans to its Granting Lender or to any financial institutions providing
liquidity and/or credit facilities to or for the account of such SPC to fund
the Loans made by such SPC or to support the securities (if any) issued by
such SPC to fund such Loans and (ii) disclose on a confidential basis, to the
extent such disclosure would be permitted under Section 10.12 as if such SPC
were a Lender, any non-public information relating to its Loans to any rating
agency, commercial paper dealer or provider of a surety, guarantee or credit
or liquidity enhancement to such SPC. Any agreement under which any assignment
described in the foregoing paragraph shall have been made shall provide that
the Granting Lender shall retain the right to enforce the agreement or approve
any amendment, modification or waiver of any provision of the Loan Documents.
SECTION 10.05. Survival. All covenants, agreements, representations
and warranties made by the Borrowers herein, in the other Loan Documents and
in the certificates or other instru ments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been
64
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans, regardless of any
investigation made by any such other party or on its behalf and
notwithstanding that the Agent or any Lender may have had notice or knowledge
of any Default or incorrect representation or warranty at the time any credit
is extended hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or any other
amount payable under this Agreement is outstanding and unpaid and so long as
the Commitments have not expired or terminated. The provisions of Sections
2.12, 2.13, 2.14, 2.17, 10.03 and 10.14, Article VIII and, in respect of the
foregoing provisions, Article IX shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Commitments
or the termination of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. This
Agreement, the other Loan Documents and any separate letter agreements with
respect to fees payable to the Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the Agent and the
Borrower and when the Administrative Agent shall have received counterparts
hereof which, when taken together, bear the signatures of each of the other
parties hereto, and thereafter shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. Delivery of
an executed counterpart of a signature page of this Agreement by telecopy
shall be effective as delivery of a manually executed counterpart of this
Agreement.
SECTION 10.07. Severability. Any provision of any Loan Document held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability
of the remaining provisions of such Loan Document; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.
SECTION 10.08. Right of Setoff. If (a) an Event of Default shall
have occurred and be continuing and (b) the principal of the Loans and accrued
and unpaid interest thereon shall have been accelerated, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any
time owing by such Lender to or for
65
the credit or the account of any Borrower against any of and all the
obligations of the Borrowers now or hereafter existing under this Agreement
held by such Lender, irrespective of whether or not such Lender shall have
made any demand under this Agreement and although such obligations may be
unmatured. Each Lender agrees to promptly notify the Company after any such
setoff and application. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of setoff) which
such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to any Loan Document, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right
that the Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against any
Borrower or its properties in the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (b) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to
hereto or thereto to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF OR
66
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREE MENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. The Agent and each of the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal
counsel and other advisors who have a reason to use such Information in
connection with the administration of this Agreement (it being understood that
the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such
Information confidential and agree to use the Information solely for purposes
of such administration), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or
any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement, (g) with the
consent of any Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Agent or any Lender on a nonconfidential basis from a
source other than a Borrower or any of its Affiliates. For the purposes of
this Section, "Information" means all information received from the Borrowers
relating to the Borrowers or their business, other than any such information
that is available to the Agent or any Lender on a nonconfidential basis prior
to disclosure by a Borrower; provided that, in the case of information
received from a Borrower after May 11, 1999, such information is clearly
identified at the time of delivery as confidential. The Agent and each of the
Lenders hereunder has established procedures designed to protect the
confidentiality of non-public information in its possession. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to
67
maintain the confidentiality of such Information as such Person would accord
to its own confidential information.
SECTION 10.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any
Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted
for, charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of
such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest
and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and
the interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until
such cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by such
Lender.
SECTION 10.14. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto (including
any Borrowing Subsidiary) agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the
first currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due to
any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent
that, on the Business Day following receipt by the Applicable Creditor of any
sum adjudged to be so due in the Judgment Currency, the Applicable Creditor
may in accordance with normal banking procedures in the relevant jurisdiction
purchase the Agreement Currency with the Judgment Currency; if the amount of
the Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, 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 10.14 shall survive the termination of this
Agreement and the payment of all other amounts owing hereunder.
68
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
CONOCO INC.,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer
CONOCO FUNDING COMPANY,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
69
BANK OF AMERICA, N.A., individually
and as Co-Syndication Agent,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
70
CITIBANK, N.A., individually and as
Co-Syndication Agent,
by
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
71
DEUTSCHE BANK AG NEW YORK BRANCH, as
Co-Syndication Agent,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
72
THE ROYAL BANK OF SCOTLAND PLC,
individually and as Co-Syndication
Agent,
by
/s/ ▇.▇. Dundee
-----------------------------------------
Name: ▇.▇. Dundee
Title: Senior Vice President
73
CREDIT SUISSE FIRST BOSTON,
individually and as Managing Agent,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director