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EXHIBIT 4.2
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$700,000,000
364-DAY CREDIT AGREEMENT
CHEVRON XXXXXXXX CHEMICAL COMPANY LLC,
a Borrower,
CHEVRON XXXXXXXX CHEMICAL COMPANY LP,
a Borrower,
BANK OF AMERICA, N.A.,
Administrative Agent,
THE CHASE MANHATTAN BANK
and
ABN AMRO BANK N.V.,
Co-Syndication Agents,
THE ROYAL BANK OF SCOTLAND PLC,
and
BARCLAYS BANK PLC,
Co-Documentation Agents
Dated as of July 2, 2001
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BANC OF AMERICA SECURITIES LLC,
as Lead Arranger and Book Manager
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TABLE OF CONTENTS
Page No.
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SECTION 1. DEFINITIONS........................................................................................... 1
1.1 Defined Terms.................................................................................. 1
1.2 Other Definitional Provisions................................................................. 11
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS...................................................................... 11
2.1 Commitment.................................................................................... 11
2.2 Repayment of Loans; Evidence of Debt.......................................................... 11
2.3 Procedure for Revolving Credit Borrowing...................................................... 12
2.4 Same Day Loans................................................................................ 14
2.5 Termination or Reduction of Commitments....................................................... 15
2.6 Optional and Mandatory Prepayments............................................................ 16
2.7 Conversion and Continuation Options........................................................... 16
2.8 Maximum Number of Tranches.................................................................... 17
2.9 Fees.......................................................................................... 17
2.10 Interest Rate................................................................................. 18
2.11 Computation of Interest and Fees.............................................................. 18
2.12 Inability to Determine Interest Rate.......................................................... 19
2.13 Pro Rata Treatment and Payments............................................................... 19
2.14 Increased Costs............................................................................... 20
2.15 Illegality.................................................................................... 21
2.16 Taxes......................................................................................... 22
2.17 Break Funding Payments........................................................................ 23
2.18 Extension of 364-Day Commitment Termination Date.............................................. 24
SECTION 3. REPRESENTATIONS AND WARRANTIES....................................................................... 25
3.1 Corporate Existence and Power................................................................. 25
3.2 Corporate and Governmental Authorization; Contravention....................................... 25
3.3 Enforceability................................................................................ 26
3.4 Litigation.................................................................................... 26
3.5 Financial Statements; No Material Change...................................................... 26
3.6 Employee Benefit Plans........................................................................ 26
3.7 Taxes......................................................................................... 27
3.8 Material Subsidiaries......................................................................... 27
3.9 Investment Company Act........................................................................ 27
3.10 Regulation U.................................................................................. 27
3.11 Compliance with Laws.......................................................................... 27
3.12 Purpose of Loans.............................................................................. 28
SECTION 4. CONDITIONS PRECEDENT................................................................................. 28
4.1 Conditions to Effectiveness of Agreement...................................................... 28
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4.2 Conditions to Each Loan....................................................................... 29
SECTION 5. AFFIRMATIVE COVENANTS OF THE BORROWERS............................................................... 29
5.1 Obligations................................................................................... 29
5.2 Financial Reporting Requirements.............................................................. 30
5.3 Notices....................................................................................... 30
5.4 Maintenance of Property; Insurance............................................................ 31
5.5 Compliance with Laws.......................................................................... 31
5.6 Books and Records............................................................................. 31
5.7 Further Assurances............................................................................ 31
SECTION 6. NEGATIVE COVENANTS OF THE BORROWERS.................................................................. 31
6.1 Negative Pledge............................................................................... 32
6.2 Consolidations, Mergers and Sales of Assets................................................... 32
SECTION 7. EVENTS OF DEFAULT.................................................................................... 33
SECTION 8. THE ADMINISTRATIVE AGENT............................................................................. 35
8.1 Appointment of Administrative Agent; No Other Duties.......................................... 35
8.2 Delegation of Duties.......................................................................... 35
8.3 Exculpatory Provisions........................................................................ 35
8.4 Reliance by Administrative Agent.............................................................. 36
8.5 Notice of Default............................................................................. 36
8.6 Non-Reliance on Administrative Agent and Other Lenders........................................ 37
8.7 Indemnification............................................................................... 37
8.8 Administrative Agent in Its Individual Capacity............................................... 38
8.9 Successor or Substitute Administrative Agent.................................................. 38
8.10 Co-Syndication Agents; Co-Documentation Agents; Lead Arranger................................. 39
SECTION 9. MISCELLANEOUS........................................................................................ 39
9.1 Amendments and Waivers........................................................................ 39
9.2 Notices....................................................................................... 40
9.3 No Waiver; Cumulative Remedies................................................................ 41
9.4 Confidentiality............................................................................... 41
9.5 Payment of Expenses; Indemnification.......................................................... 41
9.6 Successors and Assigns; Participations; Purchasing Lenders.................................... 42
9.7 Adjustments; Set-off.......................................................................... 45
9.8 Counterparts.................................................................................. 45
9.9 GOVERNING LAW................................................................................. 45
9.10 Jurisdiction; Venue........................................................................... 46
9.11 Survival and Termination of Agreement......................................................... 46
9.12 Entire Agreement.............................................................................. 47
9.13 WAIVER OF JURY TRIAL.......................................................................... 47
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9.14 Severability.................................................................................. 47
9.15 Joint and Several Liability................................................................... 47
SCHEDULE I Lender Information
ANNEX A Pricing Grid
EXHIBIT A Form of Note
EXHIBIT B Form of Assignment and Acceptance
EXHIBIT C Form of Closing Certificate
EXHIBIT D Form of Secretary's Certificate
EXHIBIT E Form of Opinion of Borrowers' Counsel
EXHIBIT F Form of Borrowing Request
EXHIBIT G Form of Exemption Certificate
EXHIBIT H Form of Same Day Borrowing Request
EXHIBIT I Form of Conversion or Continuation Request
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364-DAY CREDIT AGREEMENT, dated as of July 2, 2001, among
CHEVRON XXXXXXXX CHEMICAL COMPANY LLC, a Delaware limited liability company (the
"LLC"), CHEVRON XXXXXXXX CHEMICAL COMPANY LP, a Delaware limited partnership
which is wholly-owned, indirectly, by the LLC (the "LP"; and together with the
LLC, the "Borrowers" and, each, a "Borrower"), the several lenders from time to
time parties to this Agreement (collectively, the "Lenders"; individually, a
"Lender"), BANK OF AMERICA, N.A., as administrative agent (the "Administrative
Agent"), THE CHASE MANHATTAN BANK and ABN AMRO BANK N.V., as co-syndication
agents (the "Co-Syndication Agents"), and THE ROYAL BANK OF SCOTLAND and
BARCLAYS BANK PLC, as co-documentation agents (the "Co-Documentation Agents").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings:
"ABR": when used in reference to any Loan or borrowing, refers
to whether such Loan, or the Loans comprising such borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Administrative Agent": as defined in the preamble.
"Administrative Agent-Related Person": as defined in
subsection 8.3.
"Affiliate": as to any Person, any other Person that, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person means
the power, directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agent's/Arranger's Fees": as defined in subsection 2.9(c).
"Agreement": this
364-Day Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate": for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day or (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. "Federal Funds
Effective Rate": as used in this definition, 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
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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. "Prime Rate": as
used in this definition, the rate of interest per annum publicly announced from
time to time by Bank of America, N.A. as its "prime rate" in
New York City. Such
"prime rate" is a rate set by Bank of America, N.A., based upon various factors,
including Bank of America, N.A.'s cost and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any change
in such rate announced by Bank of America, N.A., shall take effect at the
opening of business on the day specified in the public announcement of such
change.
"Applicable Commitment Fee Rate": the "Applicable Commitment
Fee Rate" determined in accordance with the Pricing Grid.
"Applicable Eurodollar Margin": for each Eurodollar Loan, the
applicable rate per annum set forth on the Pricing Grid.
"Applicable Utilization Fee Rate": the "Applicable Utilization
Fee Rate" determined in accordance with the Pricing Grid.
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit B; collectively, the "Assignments and
Acceptances".
"Available Commitment": as to any Lender, at a particular
time, an amount equal to the excess, if any, of (a) the amount of such Lender's
Commitment at such time, minus (b) the aggregate unpaid principal amount at such
time of all Loans of such Lender, and minus (c) an amount equal to such Lender's
Commitment Percentage of the aggregate unpaid principal amount at such time of
all Same Day Loans, provided that for purposes of calculating Available
Commitments for purposes of subsection 2.9(a), such amount under clauses (b) and
(c) consisting of Same Day Loans shall be zero; collectively, the "Available
Commitments".
"Borrower(s)": as defined in the preamble.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.3 as a date on which a Borrower requests the Lenders to
make Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in
New York City are authorized or required by law
to close, provided, that with respect to notices and determinations in
connection with, and payments of principal and interest on, Eurodollar Loans,
such day is also a day for trading by and between banks in Dollar deposits in
the interbank eurodollar market.
"Capital Stock": with respect to any Person, any and all
shares, interests, participations, rights in or other equivalents in the equity
interests (however designated) in such
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Person, and any warrants or options exercisable for, exchangeable for or
convertible into such an equity interest in such Person.
"Chevron": Chevron Corporation, a Delaware corporation.
"Chevron U.S.A.": Chevron U.S.A. Inc., a Pennsylvania
corporation.
"Closing Date": July 2, 2001.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment": as to any Lender, its obligation to make Loans
to the Borrowers pursuant to subsection 2.1 and to make or participate in Same
Day Loans pursuant to subsection 2.4, in each case in an aggregate amount not to
exceed at any one time outstanding the amount set forth opposite such Lender's
name on Schedule I, as such amount may change from time to time as provided
herein; provided that the Commitments shall not at any time exceed $700,000,000
in the aggregate; collectively, the "Commitments"; provided further, that the
Commitments with respect to Same Day Loans shall not at any time exceed
$50,000,000 in the aggregate.
"Commitment Fee": as defined in subsection 2.9(a);
collectively, the "Commitment Fees".
"Commitment Percentage": at a particular time, as to any
Lender, the percentage of the aggregate Commitments in effect at such time
constituted by such Lender's Commitment.
"Commitment Period": the period from and including the Closing
Date to but not including the 364-Day Commitment Termination Date or such
earlier date as all the Commitments shall terminate as provided herein.
"Commitment Utilization Percentage": on any day the percentage
equivalent to a fraction (a) the numerator of which is the sum of the aggregate
outstanding principal amount of the Loans, excluding the Term-out Loans, and (b)
the denominator of which is the sum of the aggregate Commitments, excluding the
aggregate Commitments with respect to the Term-out Loans (or, on any day after
termination of the Commitments pursuant to Section 7, the aggregate Commitments
in effect immediately preceding such termination, excluding the aggregate
Commitments with respect to the Term-out Loans).
"Common Stock": of any Person means Capital Stock of such
Person that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding-up of such Person, to shares of Capital Stock of any
other class of such Person.
"Confidential Information": as defined in subsection 9.4.
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"Consolidated Net Assets": at any date, the total amount
(without duplication) of assets of the LLC and its Subsidiaries after deducting
therefrom (a) all current liabilities (without duplication) of the LLC and its
Subsidiaries (excluding any thereof which are by their terms extendible or
renewable at the option of the LLC or the applicable Subsidiary, as the case may
be, to a time more than 12 months after the time as of which the amount thereof
is being computed), and (b) total prepaid expenses and deferred charges of the
LLC and its Subsidiaries.
"Continuing Lender": as defined in subsection 2.18(b).
"Debt": as to any Person, at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee under capital
leases, and (v) all Debt of others Guaranteed by such Person.
"Default": any of the events specified in Section 7, whether
or not any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Documentation Agent": as defined in the preamble.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Early Commitment Termination Date": as defined in subsection
2.5(b).
"Environmental Laws": mean any and all principles of common
law and any and all laws, statutes, ordinances, rules, regulations, orders,
decrees, judgments, injunctions or binding agreements of any Governmental
Authority pertaining to the protection or reclamation of the natural environment
or to Hazardous Materials in any and all jurisdictions in which the Borrowers
and their Subsidiaries own property or conduct business, including, without
limitation, the Clean Air Act, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, the Federal Water Pollution Control
Act, the Occupational Safety and Health Act of 1970, the Resource Conservation
and Recovery Act of 1976, the Safe Drinking Water Act, the Toxic Substances
Control Act, the Hazardous & Solid Waste Amendments Act of 1984, the Superfund
Amendments and Reauthorization Act of 1986, the Hazardous Materials
Transportation Act, the Oil Pollution Act of 1990, any state or local laws
implementing or substantially equivalent to the foregoing federal laws, and all
other environmental conservation or protection laws, all as amended from time to
time.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate": any trade or business (whether or not
incorporated) that, together with either Borrower, is treated as a single
employer under Section 414 of the Code.
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"ERISA Event": (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 is waived under the
regulations); (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 either Borrower
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 either Borrower 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 either Borrower 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 either Borrower or
any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from
either Borrower 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.
"Eurodollar": when used in reference to any Loan or borrowing,
refers to whether such Loan, or the Loans comprising such borrowing, are bearing
interest at a rate determined by reference to the Eurodollar Rate.
"Eurodollar Rate": with respect to an Interest Period
pertaining to any Eurodollar Loan, the rate of interest determined on the basis
of the rate for deposits in Dollars for a period equal to such Interest Period
commencing on the first day of such Interest Period appearing on Page 3750 of
the Telerate screen as of 11:00 A.M., London time, two Business Days prior to
the beginning of such Interest Period. In the event that such rate does not
appear on such page of the Telerate screen (or otherwise on the Telerate
Service), the "Eurodollar Rate" with respect to such Eurodollar borrowing for
such Interest Period shall be the average of the rates at which dollar deposits
of $5,000,000 and for a maturity comparable to such Interest Period are offered
by the principal London offices of the Reference Banks (or, if any Reference
Bank does not at the time maintain a London office, the principal London office
of any affiliate of such Reference Bank) for 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.
"Event of Default": as defined in Section 7.
"Excess Utilization Day": each day on which the Commitment
Utilization Percentage exceeds 33%.
"Existing Commitment Termination Date": as defined in
subsection 2.18(a).
"Fee Letters": as defined in subsection 2.9(c).
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to time.
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"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantee": as to any Person, any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part), provided that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business or performance, surety
and similar bonds or completion guarantees provided in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Materials" means (a) any chemicals, materials or
substances defined or as included in the definition of "hazardous substances,"
"hazardous materials," "toxic substances," or words of similar import, under any
Environmental Law; (b) radioactive materials (other than naturally occurring
radioactive materials below threshold regulated levels), asbestos in any form
that is or could be friable, polychlorinated biphenyls, radon, mercury,
lead-based paint; and (c) regulated constituents or substances in concentrations
or levels that exceed numeric or risk-based standards established pursuant to
Environmental Laws.
"Highest Lawful Rate": with respect to each Lender, the
maximum nonusurious interest rate, if any, that at any time or from time to time
may be contracted for, taken, reserved, charged or received with respect to any
Loan hereunder or on other amounts, if any, due to such Lender pursuant to this
Agreement or any Note under applicable law. "Applicable law": as used in this
definition, with respect to each Lender, that law in effect from time to time
that permits the charging and collection by such Lender of the highest
permissible lawful, nonusurious rate of interest on the transactions herein
contemplated including, without limitation, the laws of each State that may be
held to be applicable, and of the United States of America, if applicable.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December, (b) as to any Eurodollar Loan in
respect of which the applicable Borrower has selected an Interest Period of one,
two or three months, the last day of such Interest Period, (c) as to any
Eurodollar Loan in respect of which the applicable Borrower has selected an
Interest Period longer than 3 months, each date which is three months, or a
whole multiple thereof, from the first day of such Interest Period and the last
day of such Interest Period, and (d) with respect to any Same Day Loan, the last
day of each Interest Period.
"Interest Period": (a) with respect to any Eurodollar Loan:
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(i) initially, the period commencing on the Borrowing
Date or conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three or six months thereafter, as selected by the
applicable Borrower in its notice of borrowing or notice of conversion, as the
case may be, given pursuant to subsection 2.3 or 2.7, respectively; and
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such Eurodollar Loan,
and ending one, two, three or six months thereafter, as selected by the
applicable Borrower in its notice of continuation given pursuant to subsection
2.7;
(b) with respect to any ABR Loan, the period commencing on the
Borrowing Date or conversion date, as the case may be, with respect to such ABR
Loan and ending on the day next preceding the date on which such ABR Loan is
converted into a Eurodollar Loan pursuant to subsection 2.7;
(c) with respect to any Same Day Loan, the period commencing
on the Borrowing Date with respect to such Same Day Loan and ending on a
Business Day not later than 15 days after such Borrowing Date as selected by the
applicable Borrower in its notice of borrowing or if the applicable Borrower
does not specify an Interest Period in its notice of borrowing, ending on the
first Business Day after such Borrowing Date;
provided, that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period would otherwise end on a
day which is not a Business Day, that Interest Period shall be extended to the
next succeeding Business Day, unless, with respect to Eurodollar Loans, the
result of such extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of a calendar month;
and
(iii) notwithstanding anything to the contrary in
this definition of "Interest Period" and except as provided in subsection
2.2(a), any Interest Period that would otherwise extend beyond the 364-Day
Commitment Termination Date shall end on the 364-Day Commitment Termination
Date.
"Investment Grade Rating": ratings of at least BBB- by S&P
(with not less than a stable outlook) and Baa3 by Moody's.
"Lead Arranger": Banc of America Securities LLC.
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"Lender": as defined in the preamble hereto; collectively, the
"Lenders". Unless the context otherwise requires, the term "Lenders" includes
the Same Day Lender.
"Lien": with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, a Borrower or any Subsidiary shall be deemed
to own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"LLC": as defined in the preamble.
"Loans": any loan made by a Lender (including the Same Day
Lender) hereunder; each, a "Loan".
"LP": as defined in the preamble.
"Material Subsidiary": at any time, any Subsidiary which as of
such time meets the definition of a "significant subsidiary" contained as of the
date hereof in Regulation S-X of the Securities and Exchange Commission.
"Money Market Rate": for any Interest Period, with respect to
any Same Day Loan, the fixed rate of interest per annum quoted by the
Administrative Agent to the applicable Borrower to be the fixed rate of interest
for such Same Day Loan at approximately 3:00 PM,
New York City time, on the
relevant Borrowing Date.
"Moody's": Xxxxx'x Investors Service, Inc., and its
successors.
"Multiemployer Plan": a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Non-U.S. Lender": as defined in subsection 2.16(b).
"Note": as defined in subsection 2.2(e); collectively, the
"Notes".
"Participant": as defined in subsection 9.6(b).
"Permitted Encumbrances": (a) Liens imposed by law for taxes
that are not yet due or are being contested in compliance with subsection 5.1;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's and other
like Liens imposed by law, arising in the ordinary course of business and
securing obligations that are not overdue by more than 30 days or are being
contested in compliance with subsection 5.1; (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) easements,
zoning restrictions, rights-of-way and similar encumbrances on real property
imposed
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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 interfere with the ordinary conduct of business of the
Borrowers or any of their respective Subsidiaries; (f) any Lien arising out of
judgements or awards against a Borrower or any Subsidiary with respect to which
such Borrower or such Subsidiary at the time shall be prosecuting an appeal or
proceedings for review and with respect to which it shall have secured a stay of
execution pending such appeal or proceedings for review to the extent such
proceeding has not resulted in an Event of Default under subsection 7(i); and
(g) Liens not otherwise covered by clauses (a) - (f) inclusive which are
incidental to the conduct of the business of the Borrowers and their
Subsidiaries or the ownership of their assets which do not in the aggregate
materially detract from the value of such assets or materially impair their use
in the operation of such Borrower's or such Subsidiary's business; provided that
the term "Permitted Encumbrances" shall not include any Lien securing Debt.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"PBGC": the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Xxxxxxxx": Xxxxxxxx Petroleum Company, a Delaware
corporation.
"Plan": any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which either Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pricing Grid": the Pricing Grid attached hereto as Annex A.
"Purchasing Lender": as defined in subsection 9.6(c).
"Reference Banks": Bank of America, N.A. and such other banks
acceptable to the Borrowers designated by the Administrative Agent from time to
time.
"Register": as defined in subsection 9.6(d).
"Requested Commitment Termination Date": as defined in
subsection 2.18(a).
"Required Lenders": at a particular time, (a) prior to the
364-Day Commitment Termination Date, Lenders, the Commitment Percentages of
which aggregate more than 50%, and (b) if the Commitments have been terminated
and there are Loans outstanding, Lenders holding Loans aggregating more than 50%
of the aggregate outstanding principal amount of Loans.
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"S&P": Standard & Poor's Ratings Service, a division of the
XxXxxx-Xxxx Companies, Inc., and its successors.
"Same Day Lender": Bank of America, N.A., in its capacity as
lender of Same Day Loans hereunder.
"Same Day Loan": a Loan made pursuant to subsection 2.4.
"Senior Debt": the LLC's and LP's joint and several senior
unsecured, non-credit enhanced, long term debt for which a rating has been
established by Moody's and/or S&P as provided in the Pricing Grid.
"Subsidiary": as to each Borrower, any corporation,
partnership, limited liability company or other entity of which shares of stock
or other ownership interests having ordinary voting power (other than stock or
such other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other Persons
performing similar functions are at the time directly or indirectly owned by
such Borrower.
"Successor": as defined in subsection 6.2.
"Terminating Lender": as defined in subsection 2.18(a).
"Term-out Loans": Loans the principal amount of which the
Borrowers allow to remain outstanding after the 364-Day Commitment Termination
Date, but prior to the first anniversary of the 364-Day Commitment Termination
Date, in accordance with subsection 2.2(a).
"364-Day Commitment Termination Date": July 1, 2002.
"Tranche": the collective reference to Eurodollar Loans, the
Interest Periods with respect to all of which begin on the same date and end on
the same later date (whether or not the Loans comprising any such Tranche were
originally made on the same day).
"Transferee": as defined in subsection 9.6(f).
"Transfer Effective Date": as defined in each Assignment and
Acceptance.
"Type": as to any Loan its nature as a Eurodollar Loan, an ABR
Loan or a Same Day Loan.
"Voting Stock": any class or classes of Capital Stock pursuant
to which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes shall have, or might have, voting power by reason of
the happening of any contingency).
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1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
each Borrower and its respective Subsidiaries not defined in subsection 1.1 and
accounting terms partly defined in subsection 1.1, to the extent not defined,
shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 COMMITMENT. (a) Subject to the terms and conditions
hereof, each Lender severally agrees to make Loans to the Borrowers from time to
time during the Commitment Period in an aggregate principal amount at any one
time outstanding which, when added to such Lender's Commitment Percentage of the
outstanding Same Day Loans, does not exceed the amount of such Lender's then
current Commitment; provided, that the aggregate amount of the Loans outstanding
shall not at any time exceed the aggregate amount of the Commitments. During the
Commitment Period, each Borrower may use the Commitments by borrowing, prepaying
the Loans in whole or in part, and reborrowing, all in accordance with the terms
and conditions hereof.
(b) The Loans may from time to time be (i) Eurodollar Loans,
(ii) ABR Loans, (iii) a combination thereof, or (iv) Same Day Loans, as
determined by the applicable Borrower, and notified to the Administrative Agent
in accordance with subsection 2.3, 2.4 or 2.7; provided, that unless the
Borrowers have given notice to extend payment of the principal amount of the
Loans until the first anniversary of the 364-Day Commitment Termination Date in
accordance with subsection 2.2(a), no Loan shall be made as a Eurodollar Loan
after the day that is one month prior to the 364-Day Commitment Termination
Date.
2.2 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrowers,
jointly and severally, hereby unconditionally promise to pay to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of the Loans of such Lender on the 364-Day Commitment Termination Date
(or such earlier date on which the Loans become due and payable pursuant to
Section 7). The Borrowers, jointly and severally, hereby unconditionally promise
to the Same Day Lender to pay the then unpaid principal amount of each Same Day
Loan on the earlier of the 364-Day Commitment Termination Date and the first
Business Day after the Borrowing Date for such Same Day Loan or, if an Interest
Period was selected in the
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applicable Borrower's notice of borrowing for such Same Day Loan, the last day
of such Interest Period. The Borrowers, jointly and severally, hereby further
agree to pay interest on the unpaid principal amount of the Loans from time to
time outstanding from the date hereof until payment in full thereof at the rates
per annum, and on the dates, set forth in subsection 2.10. The Borrowers may,
upon written notice to the Administrative Agent given at least 30 days prior to
the 364-Day Commitment Termination Date, extend the date upon which the
principal amount of the Loans of all the Lenders outstanding as of the 364-Day
Commitment Termination Date will be due and payable to the first anniversary of
the 364-Day Commitment Termination Date. If the Borrowers give notice to the
Administrative Agent in accordance with the preceding sentence, the Borrowers,
jointly and severally, hereby unconditionally promise to pay to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of the Loans of such Lender on the first anniversary of the 364-Day
Commitment Termination Date (or such earlier date on which the Loans become due
and payable pursuant to Section 7).
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of each Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 9.6(d) in which shall be recorded with respect to each
Borrower (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from such Borrower to each Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from such Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 2.2(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of each Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrowers to repay (with applicable interest) the Loans made
to either Borrower by such Lender in accordance with the terms of this
Agreement.
(e) The Borrowers agree that, upon the request to the
Administrative Agent by any Lender, the Borrowers will execute and deliver to
such Lender a promissory note of the Borrowers evidencing the Loans of such
Lender, substantially in the form of Exhibit A with appropriate insertions as to
date and principal amount (a "Note").
2.3 PROCEDURE FOR REVOLVING CREDIT BORROWING. (a) Each
Borrower may borrow under the Commitments during the Commitment Period on any
Business Day; provided, that the applicable Borrower shall give the
Administrative Agent irrevocable written notice, substantially in the form of
Exhibit F hereto, (i) prior to 1:00 P.M.,
New York City time, three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans and
(ii) prior to 1:00 P.M.,
New York City time, on the requested Borrowing Date, in
the case of ABR Loans, specifying (A) the amount to be borrowed, (B) the
requested Borrowing Date, (C)
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whether the borrowing is to be a Eurodollar Loan, an ABR Loan, or a combination
thereof and (D) the length of the Interest Period for each Eurodollar Loan
included in such notice. If no election as to the Type of borrowing is
specified, then the requested borrowing shall be an ABR borrowing. If no
Interest Period is specified with respect to any requested Eurodollar borrowing,
then the Interest Period shall be deemed to be one month. Each Eurodollar or ABR
borrowing under the Commitments shall be in an aggregate principal amount of the
lesser of (1) $10,000,000 or a whole multiple of $1,000,000 in excess thereof,
and (2) the then Available Commitments.
(b) Upon receipt of such notice from the applicable Borrower,
the Administrative Agent shall promptly notify each Lender thereof (but in any
event no later than (i) the date of receipt of such notice from such Borrower in
the case of Eurodollar Loans and (ii) 2:00 P.M.,
New York City time, on the
requested Borrowing Date in the case of ABR Loans). Each Lender will make the
amount of its pro rata share of each borrowing available to the Administrative
Agent for the account of such Borrower at the office of the Administrative Agent
set forth in subsection 9.2 prior to (i) 3:00 P.M.,
New York City time, in the
case of ABR Loans, and (ii) 12:00 Noon,
New York City time, in the case of
Eurodollar Loans on the Borrowing Date requested by such Borrower in funds
immediately available to the Administrative Agent in Dollars. The proceeds of
all such Loans will then be made available to such Borrower by the
Administrative Agent by crediting the account of such Borrower on the books of
the Administrative Agent, or such other account of such Borrower as shall have
been designated by such Borrower to the Administrative Agent.
(c) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a proposed Borrowing Date that such Lender
will not make available to the Administrative Agent the amount which would
constitute its Commitment Percentage of the borrowing on such Borrowing Date,
the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on such Borrowing Date, and the
Administrative Agent may, in reliance upon such assumption, make available to
the applicable Borrower an amount equal to such Lender's Commitment Percentage
of the borrowing on such Borrowing Date. The Administrative Agent shall notify
such Borrower as promptly as practicable if such Lender's Commitment Percentage
of such borrowing is not made available to the Administrative Agent on such
Borrowing Date. If such amount is made available to the Administrative Agent on
a date after such Borrowing Date, such Lender shall pay to the Administrative
Agent on demand an amount equal to the product of (i) the daily average
overnight federal funds rate during such period as quoted by the Administrative
Agent, times (ii) the amount of such Lender's Commitment Percentage of such
borrowing (minus the amount, if any, which such Lender has made available to the
Administrative Agent), times (iii) a fraction the numerator of which is the
number of days that elapse from and including such Borrowing Date to the date on
which such Lender's Commitment Percentage of such borrowing shall have become
immediately available to the Administrative Agent and the denominator of which
is 360. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection 2.3(c) shall be prima facie
evidence of the accuracy of the information set forth therein, absent manifest
error. If such Lender's Commitment Percentage of such borrowing is not in fact
made available to the Administrative Agent by such Lender within three Business
Days of such Borrowing Date, the Administrative Agent shall be entitled to
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recover the amount of such Lender's Commitment Percentage of such borrowing
(minus the amount, if any, which such Lender had made available to the
Administrative Agent) on demand from such Borrower with interest thereon (i) for
the period from and including such Borrowing Date to the date one day after such
demand, at a rate per annum equal to the daily average overnight federal funds
rate during such period as quoted by the Administrative Agent and calculated on
the basis of a 360-day year for the actual days elapsed and (ii) thereafter, at
the rate per annum applicable to ABR Loans hereunder. Nothing contained in this
subsection 2.3(c) shall prejudice in any manner whatsoever any right or remedy
of such Borrower against such Lender.
2.4 SAME DAY LOANS. (a) Subject to the terms and conditions
set forth herein, the Same Day Lender agrees to make Same Day Loans to the
Borrowers from time to time during the Commitment Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Same Day Loans exceeding $50,000,000
or (ii) the aggregate principal amount of outstanding Loans exceeding
$700,000,000. Same Day borrowings under the Commitments shall be in an aggregate
principal amount of the lesser of (1) $1,000,000, and (2) the then Available
Commitments with respect to Same Day Loans. Within the foregoing limits and
subject to the terms and conditions set forth herein, each Borrower may borrow,
prepay and reborrow Same Day Loans.
(b) To request a Same Day Loan, a Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy in a
form substantially the same as Exhibit H), not later than 2:00 P.M.,
New York
City time, on the day of a proposed Same Day Loan. Each such notice shall be
irrevocable and shall specify the requested date (which shall be a Business
Day), amount of the requested Same Day Loan and any Interest Period selected.
The Administrative Agent will promptly advise the Same Day Lender of any such
notice received from such Borrower. The Same Day Lender shall make each Same Day
Loan available to such Borrower by means of a credit to the general deposit
account of such Borrower with the Same Day Lender by 3:00 P.M., New York City
time, on the requested date of such Same Day Loan. Subject to Section 2.4(c),
each payment (including each prepayment) by either Borrower on account of Same
Day Loans shall be made to the Same Day Lender for the Same Day Lender's sole
account.
(c) The Same Day Lender may by written notice given to the
Administrative Agent not later than 1:00 P.M., New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Same Day Loans outstanding. Such notice shall specify
the aggregate amount of Same Day Loans in which Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice
thereof to each Lender, specifying in such notice such Lender's Commitment
Percentage of such Same Day Loan or Loans. Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Same Day Lender, such Lender's Commitment Percentage of such Same Day Loan or
Loans. Each Lender acknowledges and agrees that its obligation to acquire
participations in Same Day Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Lender shall
comply with its obligation
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under this paragraph by wire transfer of immediately available funds by 3:00
P.M., New York City time, on the date of receipt of the notice referenced above,
to the account of the Same Day Lender most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent shall notify the
Borrower of any participations in any Same Day Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Same Day Loan shall be
made to the Administrative Agent and not to the Same Day Lender. Any amounts
received by the Same Day Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Same Day Loan after receipt by the Same Day Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that
shall have made their payments pursuant to this paragraph and to the Same Day
Lender, as their interests may appear. The purchase of participations in a Same
Day Loan pursuant to this paragraph shall not relieve the Borrowers of any
default in the payment thereof. Notwithstanding the foregoing, a Lender shall
not have any obligation to acquire a participation in a Same Day Loan pursuant
to this paragraph if an Event of Default shall have occurred and be continuing
at the time such Same Day Loan was made and such Lender shall have notified the
Same Day Lender in writing, at least one Business Day prior to the time such
Same Day Loan was made, that such Event of Default has occurred and that such
Lender will not acquire participations in Same Day Loans made while such Event
of Default is continuing.
2.5 TERMINATION OR REDUCTION OF COMMITMENTS. (a) The Borrowers
shall have the right, upon not less than five Business Days' written notice to
the Administrative Agent, to terminate the Commitments or, from time to time, to
reduce the amount thereof; provided, that no such termination or reduction shall
be permitted if, after giving effect thereto and to any prepayments of the Loans
made on the effective date thereof, the then outstanding principal amount of the
Loans would exceed the amount of the Commitments then in effect. Any such
reduction shall be in an amount of $10,000,000, or a whole multiple of
$5,000,000 in excess thereof, and shall reduce permanently the amount of such
Commitments then in effect.
(b) Unless an Event of Default has occurred and is continuing,
the Borrowers shall have the right, in their sole discretion, to terminate the
Commitment of any Lender by giving the Administrative Agent and such Lender a
written notice setting forth its election and a termination date (the "Early
Commitment Termination Date"), which date shall not be earlier than 30 days
after the date on which such notice has been given, except as otherwise provided
in subsections 2.14(c), 2.15 and 2.16(f). On the Early Commitment Termination
Date, such Lender's Commitment shall terminate and the Borrowers shall (i)
prepay all of such Lender's outstanding Loans together with interest thereon
accrued to such Early Commitment Termination Date and any amounts payable
pursuant to subsection 2.17, (ii) pay all Commitment Fees accrued to such Early
Commitment Termination Date with respect to such Lender's Commitment and (iii)
pay all amounts then owing to such Lender pursuant to subsections 2.14, 2.16,
2.17 and 9.5 for which demand has been made to the Borrowers prior to such Early
Commitment Termination Date. Upon termination of such Lender's Commitment in
accordance with this subsection 2.5(b), such Lender shall cease to be a party
hereto.
(c) In the event that the Borrowers elect to terminate the
Commitment of any Lender pursuant to subsection 2.5(b), the Borrowers shall have
the right, in their sole discretion,
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upon notice to the Administrative Agent, to request one or more Lenders or
Purchasing Lenders, or to seek another lender, to acquire, pursuant to
subsection 9.6(c), such terminated Commitment and all amounts owing to such
Lender in respect of its Loans hereunder; provided, however, that if such
terminated Commitments are in the aggregate greater than 15% of the then
aggregate Commitments, the Borrowers will replace such terminated Lender or
Lenders with one or more replacement lenders (which may be a Lender or Lenders)
which will acquire on the date of such termination, pursuant to subsection
9.6(c), an amount of such terminated Commitment or Commitments, as applicable,
which will result in the then aggregate Commitments, after giving effect to such
acquisition, being at least 85% of the aggregate Commitments as of the Closing
Date (as the same may be reduced pursuant to subsection 2.5(a), but excluding
any reductions pursuant to subsection 2.5(b)).
2.6 OPTIONAL AND MANDATORY PREPAYMENTS. (a) Optional
Prepayments. The Borrowers may at any time and from time to time prepay the
Loans, in whole or in part, without premium or penalty upon (i) in the case of
Eurodollar Loans, at least three Business Days' irrevocable written notice to
the Administrative Agent, specifying the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans or a combination of Eurodollar
Loans and ABR Loans, and if a combination thereof, the amount of prepayment
allocable to each, (ii) in the case of ABR Loans, at least one Business Day's
irrevocable written notice to the Administrative Agent, specifying the date and
amount of prepayment and (iii) in the case of Same Day Loans, upon irrevocable
written notice to the Administrative Agent received no later than 1:00 P.M. on
the day of such prepayment, specifying the date and amount of prepayment. Upon
receipt of such notice the Administrative Agent shall promptly notify each
Lender thereof. If such notice is given, the payment amount specified in such
notice shall be due and payable on the date specified therein, together with any
interest thereon accrued to such prepayment date and any amounts payable
pursuant to subsection 2.17.
(b) Mandatory Prepayments. If, after giving effect to any
termination or reduction of the Commitments pursuant to subsection 2.5, the
aggregate outstanding principal amount of the Loans exceeds the Commitments as
so reduced, the Borrowers shall, simultaneously with any such termination or
reduction of the Commitments pay or prepay an amount equal to such excess
together with interest thereon accrued to such date of payment or prepayment and
any amount payable pursuant to subsection 2.17.
2.7 CONVERSION AND CONTINUATION OPTIONS. (a) Each Borrower may
elect from time to time to convert its Eurodollar Loans to ABR Loans by giving
the Administrative Agent prior irrevocable notice, in a form substantially the
same as Exhibit I, of such election by 1:00 PM, New York City time, on a
Business Day; provided, that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. Each Borrower
may elect from time to time to convert its ABR Loans to Eurodollar Loans by
giving the Administrative Agent at least three Business Days' prior irrevocable
notice of such election. Any such notice of conversion to Eurodollar Loans shall
specify the length of the Interest Periods therefor. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof. All
or any part of the outstanding Eurodollar Loans and ABR Loans may be converted
as provided herein; provided, that no Loan may be converted into a Eurodollar
Loan when any Event of Default has occurred and is continuing if the
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Administrative Agent, upon the request of the Required Lenders, shall determine
not to permit such conversions.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
applicable Borrower giving notice, in a form substantially the same as Exhibit
I, to the Administrative Agent, in accordance with the appropriate notification
provisions therefor set forth in subsection 2.7(a), of the length of the next
Interest Period to be applicable to such Loans; provided, that if the applicable
Borrower shall fail to give any required notice as described above in this
paragraph, such Loans shall automatically be continued as Eurodollar Loans with
an Interest Period of one month; provided, further, that no Eurodollar Loan may
be continued as such when any Event of Default has occurred and is continuing if
the Administrative Agent, upon the request of the Required Lenders, shall
determine not to permit such continuations; and further provided, that if such
continuation is not permitted pursuant to the preceding proviso, such Loans
shall automatically be converted to ABR Loans.
(c) This subsection 2.7 shall not apply to Same Day Loans,
which may not be converted or continued.
2.8 MAXIMUM NUMBER OF TRANCHES. All conversions and
continuations of Loans outstanding at any one time hereunder and all selections
of Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, there shall be no more than
15 Tranches.
2.9 FEES. (a) The Borrowers agree to pay to the Administrative
Agent for the ratable account of each Lender a commitment fee (the "Commitment
Fee") from and including the first day of the Commitment Period to the 364-Day
Commitment Termination Date, at the rate per annum equal to the Applicable
Commitment Fee Rate on the average daily amount of the Available Commitment of
such Lender during the period for which payment is made. Such Commitment Fees
shall be payable quarterly in arrears on the last Business Day of each March,
June, September and December and on the 364-Day Commitment Termination Date or
such earlier date as the Commitment of such Lender shall terminate as provided
herein, commencing on the first of such dates to occur after the Closing Date.
(b) The Borrowers agree to pay to the Administrative Agent for
the ratable account of each Lender, a utilization fee (a "Utilization Fee") at a
rate per annum equal to the Applicable Utilization Fee Rate for each Excess
Utilization Day on the outstanding Loans of such Lender on such Excess
Utilization Day during the period for which payment is made. Such Utilization
Fees shall be payable quarterly in arrears on the last Business Day of each
March, June, September and December and on the 364-Day Commitment Termination
Date or such earlier date as the Commitment of such Lender shall terminate as
provided herein, commencing on the first of such dates to occur after the
Closing Date.
(c) The Borrowers agree to pay to the Administrative Agent and
the Lead Arranger, for their own respective accounts, the fees heretofore agreed
in writing pursuant to the fee letter dated as of July 2, 2001 (the "Fee
Letter") with the Administrative Agent and the Lead
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Arranger (any such fees, the "Agent's/Arranger's Fees"). The Borrowers agree to
pay to the Administrative Agent for the respective accounts of the Lenders, pro
rata according to their Commitment amounts, an upfront fee in an amount set
forth in the Fee Letter.
2.10 INTEREST RATE. (a) Each Eurodollar Loan shall bear
interest for the Interest Period applicable thereto on the unpaid principal
amount thereof at a rate per annum equal to the Eurodollar Rate determined for
such Interest Period plus the Applicable Eurodollar Margin.
(b) Each Same Day Loan shall bear interest on the unpaid
principal amount thereof at a rate per annum equal to the Money Market Rate plus
the Applicable Eurodollar Margin; provided, however, that, at any time as there
shall be a Same Day Loan outstanding past the date such Same Day Loan is due and
payable or there shall have occurred and be continuing an Event of Default, each
Same Day Loan as to which the Lenders shall have acquired participations
pursuant to subsection 2.4(c) shall bear interest from and after the earlier of
(i) the date after which such Same Day Loan is due and payable or (ii) the date
on which such Event of Default shall have occurred, in each case at a rate per
annum equal to the Alternate Base Rate.
(c) Each ABR Loan shall bear interest at a rate per annum
equal to the Alternate Base Rate.
(d) If all or a portion of the principal amount of or any
interest on any Loan shall not be paid when due (without regard to any
applicable grace periods, whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall, without limiting the rights of any Lender
under Section 7, bear interest at a rate per annum equal to the rate which would
otherwise be applicable pursuant to subsection 2.10(a), (b) or (c), as
applicable, plus 2%, in each case from the date of nonpayment until paid in full
(as well after as before judgment).
(e) Interest on each Loan shall be payable in arrears on each
Interest Payment Date with respect thereto.
2.11 COMPUTATION OF INTEREST AND FEES. (a) Interest in respect
of the ABR Loans shall be calculated on the basis of a 365 (or 366, as the case
may be) day year for the actual days elapsed. Interest in respect of Eurodollar
Loans, Same Day Loans, Commitment Fees and Utilization Fees shall be calculated
on the basis of a 360 day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the Borrowers and the Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the Alternate Base Rate or the Applicable Eurodollar
Margin shall become effective as of the opening of business on the day on which
such change in the Alternate Base Rate is announced or such Applicable
Eurodollar Margin changes as provided herein, as the case may be. The
Administrative Agent shall as soon as practicable notify the Borrowers and the
Lenders of the effective date and the amount of each such change.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrowers and the Lenders in the absence of
manifest error. Upon the request of a Borrower, the Administrative
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Agent shall deliver to the Borrowers a statement showing the determination of
any interest rate pursuant to subsections 2.10(a), (b) or (c), as applicable.
2.12 INABILITY TO DETERMINE INTEREST RATE. In the event that
prior to the first day of any Interest Period with respect to a Eurodollar Loan:
(i) the Administrative Agent determines (which
determination shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period; or
(ii) the Administrative Agent shall have received notice
prior to the first day of such Interest Period from the Required Lenders that
the interest rate determined pursuant to subsection 2.10(a) for such Interest
Period does not accurately reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining Eurodollar Loans during such
Interest Period,
with respect to a Loan that is to be made as or converted to or continued as a
Eurodollar Loan, the Administrative Agent shall forthwith give telecopy or
telephonic notice of such determination to the Borrowers and each Lender at
least one day prior to the relevant Borrowing Date, conversion date or
continuation date for such Eurodollar Loan. If such notice is given, any Loan
that is to be made as or converted to or continued as a Eurodollar Loan shall be
made as or converted to an ABR Loan.
2.13 PRO RATA TREATMENT AND PAYMENTS. (a) Except as provided
by subsection 2.4, each borrowing by either Borrower from the Lenders hereunder
and, except as otherwise provided by subsection 2.5(b), in the Fee Letter or by
subsection 2.9(c), each payment by either Borrower on account of any fee payable
hereunder in respect of the Commitments and any reduction of the Commitments of
the Lenders hereunder shall be made pro rata according to the respective
Commitment Percentages of the Lenders. Except as otherwise provided in
subsections 2.4 and 2.5(b), each payment (including each prepayment) by either
Borrower on account of principal of and interest on the Loans shall be made pro
rata according to the respective outstanding principal amounts of the Loans then
held by the Lenders.
(b) All payments (including prepayments) to be made by either
Borrowers hereunder and under any Notes on account of principal, interest and
fees shall be made prior to 3:00 PM, New York City time, on the date when due
without set-off or counterclaim and shall be made to the Administrative Agent
(except payments to be made directly to the Same Day Lender as expressly
provided in this Agreement), for the account of the Lenders (or, in the case of
payments made pursuant to subsection 2.5(b), for the account of each Lender
whose Commitment has been terminated pursuant to any such subsection or, in the
case of Agent's/Arranger's Fees, to the Administrative Agent or the Lead
Arranger as agreed in writing), at the Administrative Agent's office set forth
in subsection 9.2, in lawful money of the United States of America and in
immediately available funds. 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. The
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Administrative Agent shall distribute such payments to each Lender promptly upon
receipt in like funds as received.
(c) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts then due
hereunder, such funds shall be applied (i) first, towards payment of interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of accrued interest and fees then due 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.
2.14 INCREASED COSTS. (a) If the adoption of any applicable
law, rule or regulation after the date of this Agreement, or any change in any
law, rule or regulation, or in the interpretation, application or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation, application or administration thereof after the date of
this Agreement, or compliance by any Lender with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency made after the date of this Agreement shall impose, modify or
deem applicable any reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the Board of Governors of
the Federal Reserve System or any Person or Persons performing similar functions
with respect to a foreign bank) against assets of, deposits with or for the
account of, or credit extended by, any Lender which are not otherwise included
in the determination of the applicable Eurodollar Rate hereunder, or shall
impose any other condition (including, without limitation, any assessment for
deposit insurance under any applicable laws) regarding this Agreement; and the
result of any of the foregoing is to increase the cost to such Lender, by an
amount which such Lender deems to be material, of making, converting into,
continuing or maintaining extensions of credit or to reduce any amount
receivable hereunder, in each case, in respect of its Eurodollar Loans, then, in
any such case, the Borrowers shall promptly pay such Lender, upon its demand,
any additional amounts necessary to compensate such Lender for such additional
cost or reduced amount receivable.
(b) If any Lender shall have determined reasonably and in good
faith that the adoption of any law, rule, regulation or guideline regarding
capital adequacy after the date of this Agreement, or any change in any of the
foregoing after the date of this Agreement or in the interpretation or
administration of any of the foregoing by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof after the date of this Agreement, or compliance by such Lender (or any
lending office of such Lender) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency after the date of this Agreement,
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 as a consequence of
its obligations hereunder to a level below that which such Lender or such
Lender's holding company could have achieved but for this Agreement and such
adoption, change or compliance (taking into consideration such Lender's policies
and the policies of such Lender's holding company with respect to capital
adequacy) by an amount which such Lender deems to be material, then from time to
time promptly after demand by such Lender, the Borrowers shall pay to such
Lender such
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additional amount or amounts as will compensate such Lender or such Lender's
holding company for such reduction.
(c) If a Lender becomes entitled to claim any additional
amounts pursuant to this subsection 2.14, it shall promptly notify the
Borrowers, through the Administrative Agent, of the event by reason of which it
has become so entitled. A certificate as to any additional amounts payable
pursuant to this subsection 2.14 and setting forth in reasonable detail the
basis for such claim, submitted by such Lender (through the Administrative
Agent) to the Borrowers, shall be conclusive in the absence of manifest error.
The Borrowers shall pay such Lender the amount shown as due on any such
certificate promptly upon receipt thereof. 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
Borrowers shall not be required to compensate a Lender pursuant to this
subsection 2.14 for any increased costs or reductions incurred more than six
months prior to the date that such Lender notifies the Borrowers of such
Lender's intention to claim compensation therefor and, if the circumstances
giving rise to such increased cost or reduction have a retroactive effect, then
such six-month period shall be extended to include the period of such
retroactive effect. Each Lender shall designate a different lending office for
funding or booking its Loans hereunder or assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if such designation
or assignment will avoid the need for, or reduce the amount of, compensation
pursuant to this subsection 2.14 and will not, in the judgement of such Lender,
be otherwise disadvantageous to such Lender. Upon receipt of notice from such
Lender of a claim pursuant to this subsection 2.14, the Borrowers may terminate
such Lender's Commitment pursuant to subsection 2.5(b) upon three Business Days'
notice to the Administrative Agent and such Lender unless such Lender shall have
designated a different lending office or assigned its rights and obligations
hereunder to another of its offices, branches or affiliates as provided in the
preceding sentence.
2.15 ILLEGALITY. Notwithstanding any other provision of this
Agreement, if any requirement of law or any change therein or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, such Lender
shall promptly notify the Borrowers and the Administrative Agent thereof and the
Commitment of such Lender hereunder to make and continue Eurodollar Loans as
such and convert ABR Loans to Eurodollar Loans shall forthwith be suspended to
the extent required by law until such time as such Lender may again make and
maintain Eurodollar Loans. To the extent required by law such Lender's Loans
then outstanding as Eurodollar Loans, if any, shall be converted into ABR Loans
on the last day of the Interest Period therefor, or within such earlier period
as required by law, to the extent necessary to maintain such Lender's Commitment
Percentage of outstanding Loans. Such Lender shall designate a different lending
office for funding or booking its Eurodollar Loans or assign its rights and
obligations hereunder to another of its offices, branches or affiliates if such
designation or assignment will permit such Lender to lawfully make and maintain
Eurodollar Loans hereunder and will not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender. Upon receipt of notice from such
Lender as specified in the first sentence of this subsection 2.15, the Borrowers
may terminate such Lender's Commitment pursuant to subsection 2.5(b) upon three
Business Days' notice to the Administrative Agent unless such Lender shall have
designated a different lending office or
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assigned its rights and obligations hereunder to another of its offices,
branches or affiliates as provided in the preceding sentence.
2.16 TAXES. (a) Except as otherwise provided hereunder,
payments made by a Borrower, the Administrative Agent or any Lender under this
Agreement and any Notes shall be made free and clear of, and without reduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority excluding, in the case of the Administrative Agent and
each Lender, net income and franchise taxes imposed on or withholdings required
on payments made to the Administrative Agent or such Lender by the jurisdiction
under the laws of which the Administrative Agent or such Lender is organized or
any political subdivision or taxing authority thereof or therein, or by any
jurisdiction in which such Lender's lending office is located or any political
subdivision or taxing authority thereof or therein (all such non-excluded taxes,
levies, imposts, deductions, charges or withholdings being hereinafter called
"Taxes"). If any Taxes are required to be withheld from any amounts payable to
the Administrative Agent or any Lender hereunder or under any Notes, the amounts
so payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Agreement and any Notes; provided,
that no such increase to the amounts payable hereunder shall be made or be
payable (i) to the extent that such Taxes are attributable to the failure of the
Administrative Agent or such Lender to comply with the requirements of
subsection 2.16(b) hereof or (ii) that are United States withholding taxes
imposed on amounts payable to such Lender at the time such Lender becomes a
party to this Agreement, except to the extent that such Lender's assignor (if
any) was entitled, at the time of assignment, to receive additional amounts from
the Borrower with respect to such Taxes pursuant to this subsection 2.16(a).
(b) Each Lender (or transferee) that is not a "U.S. Person" as
defined in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver
to the Borrowers and the Administrative Agent (or, in the case of a Participant,
to the Lender from which the related participation shall have been purchased)
two copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI,
or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a statement substantially in the form of
Exhibit G and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrowers under this Agreement and the Notes. Such forms
shall be delivered by each Non-U.S. Lender on or before the later of (i) the
date it becomes a party to this Agreement (or, in the case of any Participant,
on or before the date such Participant purchases the related participation) or
(ii) prior to receipt by such Lender or Participant of any payment subject to
withholding under the Code. In addition, each Non-U.S. Lender shall deliver such
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify
the Borrowers at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrowers (or any other form
of certification adopted by the U.S.
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taxing authorities for such purpose). Notwithstanding any other provision of
this subsection 2.16(b), a Non-U.S. Lender shall not be required to deliver any
form pursuant to this subsection 2.16(b) that such Non-U.S. Lender is not
legally able to deliver.
(c) The applicable Borrower shall promptly send to the
Administrative Agent for its own account or for the account of any Lender, as
the case may be, a copy of an original official receipt received by such
Borrower showing payment to the proper taxing authority by such Borrower of any
Taxes withheld. If a Borrower fails to withhold and pay over to the proper
taxing authority any Taxes when due or fails to remit to the Administrative
Agent or any Lender the required receipts or other required documentary
evidence, the Borrowers shall indemnify the Administrative Agent and any such
Lender for any interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure.
(d) Each Lender shall designate a different lending office for
its Loans or assign its rights and obligations hereunder to another of its
offices, branches or affiliates if such designation or assignment will avoid the
need for, or reduce the amount of, increased amounts payable pursuant to
subsection 2.16(a) and will not, in the judgement of such Lender, be otherwise
disadvantageous to such Lender.
(e) Each Borrower agrees to pay, indemnify, and hold each
Lender and the Administrative Agent harmless from 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
Notes.
(f) If an amount payable by a Borrower hereunder for the
account of any Lender is increased pursuant to subsection 2.16(a), or the
Borrowers become liable to indemnify the Administrative Agent or any Lender
under subsection 2.16(e), the Borrowers shall have the right to terminate the
Commitment of such Lender pursuant to subsection 2.5(b) upon three Business
Days' notice to the Administrative Agent and such Lender unless such Lender
shall have designated a different lending office or assigned its rights and
obligations hereunder to another of its offices, branches or affiliates as
provided in subsection 2.16(d).
2.17 BREAK FUNDING PAYMENTS. In the event of: (a) the payment
of any principal of any Eurodollar Loan or Same Day Loan other than on the last
day of an Interest Period applicable thereto (including as a result of an Event
of Default), (b) the conversion of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Loan on the date specified in any notice
delivered pursuant hereto, (d) the assignment of any Eurodollar Loan other than
on the last day of the Interest Period applicable thereto as a result of a
request by the Borrowers pursuant to subsections 2.5(b) or (c), then, in any
such event, the Borrowers shall compensate each Lender for the loss, cost and
expense attributable to such event. The loss to any Lender attributable to any
such event shall be an amount determined by such Lender to be equal to the
excess, if any, of (i) the amount of interest that would have accrued to such
Lender on the amount so paid or not borrowed, continued or converted at a rate
of interest equal to the Eurodollar Rate for such Eurodollar Loan, for the
period from the date of such payment or failure to borrow, continue or
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convert to the last day (x) in the case of a payment other than on the last day
of the Interest Period for such Loan, of the then current Interest Period for
such Loan, or (y) in the case of such failure to borrow, continue or convert, of
the Interest Period for such Loan which would have commenced on the date of such
failure to borrow, continue or convert, over (ii) the amount of interest which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading Lenders in the London interbank
market. If a Lender becomes entitled to claim any amounts pursuant to this
subsection 2.17, it shall promptly notify the Borrowers, through the
Administrative Agent, of the event by reason of which it has become so entitled.
A certificate as to any amounts payable pursuant to this subsection 2.17 and
setting forth in reasonable detail the basis for such claim, submitted by such
Lender (through the Administrative Agent) to the Borrowers, shall be conclusive
in the absence of manifest error. The Borrowers shall pay such Lender the amount
shown as due on any such certificate promptly after receipt thereof.
2.18 EXTENSION OF 364-DAY COMMITMENT TERMINATION DATE. (a) The
Borrowers may request, in a notice given as herein provided to the
Administrative Agent and each of the Lenders not less than 30 days and not more
that 60 days prior to the 364-Day Commitment Termination Date (the "Existing
Commitment Termination Date"), that the 364-Day Commitment Termination Date be
extended for 364 days (such 364th day, the "Requested Commitment Termination
Date"). Each Lender, acting in its sole discretion, shall, not later than a date
30 days after its receipt of any such notice from the Borrowers, notify the
Borrowers and the Administrative Agent in writing of its election to extend or
not to extend the 364-Day Commitment Termination Date with respect to its
Commitment. Any Lender which shall not timely notify the Borrower and the
Administrative Agent of its election to extend the 364-Day Commitment
Termination Date shall be deemed not to have elected to extend the 364-Day
Commitment Termination Date with respect to its Commitment (any Lender who
timely notifies the Borrower and the Administrative Agent of an election not to
extend and any Lender who fails to timely notify the Borrower and the
Administrative Agent of its election being referred to as a "Terminating
Lender"). The election of any Lender to agree to a requested extension shall not
obligate any other Lender to agree.
(b) If and only if the Required Lenders (including
Commitments of all Terminating Lenders on such date) shall have agreed during
the 30 day period referred to in subsection 2.18(a) to extend the Existing
Commitment Termination Date, then (i) the Commitments of the Lenders other than
Terminating Lenders (the "Continuing Lenders") shall, subject to the other
provisions of this Agreement, be extended to the Requested Commitment
Termination Date specified in the notice from the Borrower, and as to such
Lenders the term "364-Day Commitment Termination Date", as used herein, shall on
and after the date as of which the requested extension is effective mean such
Requested Commitment Termination Date, provided that if such date is not a
Business Day, then such Requested Commitment Termination Date shall be the next
preceding Business Day and (ii) the Commitments of the Terminating Lenders shall
continue until the Existing Commitment Termination Date, and shall then
terminate, and as to the Terminating Lenders, the term "364-Day Commitment
Termination Date", as used herein, shall continue to mean such Existing
Commitment Termination Date. All Loans of the Terminating Lenders will be due
and payable on such Existing Commitment Termination Date.
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(c) In the event that the 364-Day Commitment Termination Date
shall have been extended for the Continuing Lenders in accordance with paragraph
(b) above and, in connection with such extension, there are Terminating Lenders,
the Borrower may, at its own expense, require any Terminating Lender to transfer
and assign, without recourse (in accordance with subsection 9.6(c)) all or part
of its interests, rights and obligations under this Agreement to an assignee
(which assignee may be another Lender, if another Lender accepts such
assignment) that shall assume such assigned obligations and that shall agree
that its Commitment will expire on the 364-Day Commitment Termination Date in
effect for Continuing Lenders pursuant to subsection 2.18(a); provided, however,
that (i) the Borrowers shall have given written notice to the Administrative
Agent in the case of an assignee that is not a Lender and (ii) the assigning
Lender shall have received from the Borrower or such assignee full payment in
immediately available funds of the principal of and interest accrued to the date
of such payment on the Loans made by it hereunder to the extent that such Loans
are subject to such assignment and all other amounts owed to it hereunder
(including any amounts that would be payable to the assigning Lender pursuant to
subsection 2.17 if such assignment were, instead, a prepayment of the Loans of
such Lender). Any such assignee's initial 364-Day Commitment Termination Date
shall be the 364-Day Commitment Termination Date in effect for the Continuing
Lenders at the time of such assignment. No Borrower shall have any right to
require a Lender to assign any part of its interests, rights and obligations
under this Agreement pursuant to this subsection 2.18(c) unless it has notified
such Lender of its intention to require the assignment thereof at least ten days
prior to the proposed assignment date.
SECTION 3. REPRESENTATIONS AND WARRANTIES
Each Borrower as to itself hereby represents and warrants to
the Administrative Agent and to each Lender that:
3.1 CORPORATE EXISTENCE AND POWER. The LLC is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware, and has all limited liability company powers
and all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted. The LP is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Delaware, and has all partnership powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
3.2 CORPORATE AND GOVERNMENTAL AUTHORIZATION; CONTRAVENTION.
The execution, delivery and performance by such Borrower of this Agreement and
any Notes are within its limited liability company or partnership, as
applicable, powers, have been duly authorized by all necessary limited liability
company or partnership, as applicable, action, require no action by or in
respect of, or filing with, any Governmental Authority and do not contravene, or
constitute a breach or a default under, any provision of any applicable law,
regulation or order of any Governmental Authority, or (i) in the case of the
LLC, its Certificate of Formation, as amended, and the Amended and Restated
Limited Liability Company Agreement, as amended, (ii) in the case of the LP, its
Certificate of Partnership and Agreement of Limited Partnership, or (iii) in the
case of both the LLC and the LP, any agreement, judgment,
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injunction, order, decree or other instrument binding upon such Borrower or
result in the creation or imposition of any Lien on any asset of such Borrower
or any of its Subsidiaries.
3.3 ENFORCEABILITY. This Agreement and any Notes constitute
the legal, valid and binding obligation of such Borrower, enforceable against
such Borrower in accordance with their respective terms, subject, as to
enforceability only, to applicable bankruptcy, moratorium, insolvency or similar
laws affecting the rights of creditors generally and to general principles of
equity.
3.4 LITIGATION. Neither Borrower nor any of their respective
Subsidiaries is a party to any, and there are no pending or, to Borrowers'
knowledge, threatened, legal, administrative, arbitral or other proceedings,
claims, actions or governmental or regulatory investigations of any nature
against or affecting either Borrower or any of its respective Subsidiaries that
(i) individually or in the aggregate, would reasonably be expected to materially
adversely affect the business, consolidated financial position or results of
operations of the Borrowers and their Subsidiaries taken as a whole or (ii) that
involve this Agreement or the transactions under this Agreement and could
reasonably be expected to adversely affect the enforceability of any material
provision of this Agreement.
3.5 FINANCIAL STATEMENTS; NO MATERIAL CHANGE. (a) The
consolidated balance sheets of the LLC as of December 31, 2000 and as of March
31, 2001, and the related consolidated statements of operations, of members'
capital and of cash flows for the period July 1, 2000 (inception) through
December 31, 2000, and for the period January 1, 2001, through March 31, 2001,
copies of which have been presented to the Lenders, present fairly, in all
material respects, the financial condition of the Borrowers and their
Subsidiaries, taken as a whole, at December 31, 2000 and March 31, 2001,
respectively, and the results of their operations and their cash flows for the
period July 1, 2000 (inception) through December 31, 2000, and January 1, 2001
through March 31, 2001, respectively, in conformity with GAAP.
(b) Since March 31, 2001, as reflected in (a) above, there has
been no material adverse change in the business, consolidated financial position
or results of operations of the Borrowers and their Subsidiaries taken as a
whole.
3.6 EMPLOYEE BENEFIT PLANS. No "Prohibited Transaction" (as
such term is defined in ERISA) has occurred or ERISA Event has occurred or is
reasonably expected to occur with respect to any "Employee Benefit Plans" (as
such term is defined in ERISA) of the LLC or any of its Subsidiaries or any
ERISA Affiliate which would reasonably be expected to materially adversely
affect the business, consolidated financial position or results of operations of
the Borrowers and their Subsidiaries taken as a whole. No "Prohibited
Transaction" under ERISA or the Code which would have a material adverse effect
on the business, consolidated financial position or results of operations of the
Borrowers and their Subsidiaries taken as a whole has occurred with respect to
the LLC or any of its Subsidiaries or any ERISA Affiliate or will occur upon the
issuance of any Notes or the execution of this Agreement. The present value of
all accumulated benefit obligations under each Plan (based on the assumptions
use 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
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Plan by an amount that could reasonably be expected to result in a material
adverse effect on the business, consolidated financial position or results of
operations of the Borrowers and their Subsidiaries taken as a whole, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumption 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 on the business, consolidated financial
position or results of operations of the Borrowers and their Subsidiaries taken
as a whole.
3.7 TAXES. The LLC and its Subsidiaries have filed all United
States federal income tax returns which are required to be filed by them. The
LLC and its Subsidiaries have filed all United States federal information tax
returns and all other material tax returns which are required to be filed by
them and their Subsidiaries and have paid, where applicable, all taxes due
pursuant to such returns or pursuant to any assessment received by the LLC or
any of its Subsidiaries, except (i) those which are currently being contested in
good faith by appropriate proceedings and for which LLC or such Subsidiary, as
applicable, would be liable for the contested taxes if the appeal is
unsuccessful and has set aside on its books adequate reserves to the extent
required by GAAP or (ii) where the failure to do so, individually or in the
aggregate, would not reasonably be expected to result in a material adverse
effect on the business, consolidated financial position or results of operations
of the LLC and its Subsidiaries taken as a whole. The charges, accruals and
reserves on the books of the LLC and its Subsidiaries in respect of taxes or
other governmental charges assessable against the LLC are, in the opinion of the
LLC, adequate. The federal tax identification number for the LLC is 00-0000000
and the federal tax identification number for the LP is 00-0000000.
3.8 MATERIAL SUBSIDIARIES. Each of such Borrower's Material
Subsidiaries is a corporation or other legal entity duly incorporated or formed,
validly existing and in good standing under the laws of its jurisdiction of
incorporation or formation, and has all corporate or partnership powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on business as now conducted.
3.9 INVESTMENT COMPANY ACT. Neither Borrower is an "investment
company" or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
3.10 REGULATION U. No part of the proceeds of the Loans will
be used by such Borrower for any purpose which violates or would be inconsistent
with the provisions of Regulation U of the Board of Governors of the Federal
Reserve.
3.11 COMPLIANCE WITH LAWS. Such Borrower and its Subsidiaries
is in compliance with all laws, regulations and orders (including, without
limitations, ERISA and Environmental Laws) 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
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material adverse effect on the business, consolidated financial position or
results of operations of the Borrowers and their Subsidiaries taken as a whole.
3.12 PURPOSE OF LOANS. The proceeds of the Loans shall be for
general corporate and business purposes of either or both Borrowers.
SECTION 4. CONDITIONS PRECEDENT
4.1 CONDITIONS TO EFFECTIVENESS OF AGREEMENT. The
effectiveness of this Agreement is subject to the satisfaction of the following
conditions on the Closing Date:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized officer
of each Borrower and each Lender and (ii) for the account of each Lender that
has requested a Note, a Note conforming to the requirements of subsection 2.2
and executed by a duly authorized officer of each Borrower.
(b) Closing Certificate. The Administrative Agent shall have
received a Closing Certificate of each Borrower, substantially in the form of
Exhibit C and dated the Closing Date; such Closing Certificate shall be
satisfactory in form and substance to the Administrative Agent and its counsel
and shall be executed by the Chairman of the Board of Directors, the President
or any Vice President or the Treasurer or any Assistant Treasurer, and the
Secretary or any Assistant Secretary of the applicable Borrower.
(c) Secretary's Certificate. The Administrative Agent shall
have received a certificate of the Secretary or Assistant Secretary of each
Borrower, substantially in the form of Exhibit D and dated the Closing Date and
in form and substance satisfactory to the Administrative Agent, which
certificate shall (i) certify as to the incumbency and signature of the officers
of such Borrower executing this Agreement and any Notes (with the President or a
Vice President of such Borrower attesting to the incumbency and signature of the
Secretary or Assistant Secretary providing such certificate), (ii) have attached
to it a true, complete and correct copy of each of the certificate of
incorporation and by-laws or equivalent organizational documents of such
Borrower, (iii) have attached to it a true and correct copy of the resolutions
of the Board of Directors or General Partner, as applicable, of such Borrower,
which resolutions shall authorize the execution, delivery and performance of
this Agreement and the Notes and the borrowings by such Borrower hereunder and
(iv) certify that, as of the date of such certificate, none of such certificate
of incorporation, by-laws or partnership agreements, as applicable, or board
resolutions or resolutions of the general partner, as applicable, shall have
been amended, supplemented, modified, revoked or rescinded.
(d) Fees and Expenses. The Administrative Agent, the Lead
Arranger and the Lenders shall have received their respective fees referred to
in subsection 2.9(c) and any expenses for which an invoice has been submitted to
be received on the Closing Date.
(e) Legal Opinions. The Administrative Agent shall have
received the executed legal opinion of Xxxxxxx Xxxxxxx, Assistant General
Counsel of the Borrowers, substantially in
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the form of Exhibit E and dated the Closing Date, with such changes therein as
shall be requested or approved by the Administrative Agent.
(f) Approvals. The Administrative Agent shall have received a
certificate of an officer of the Borrowers certifying that any governmental and
third party approvals necessary and material in connection with the financing
contemplated hereby and the continuing operations of either Borrower and its
Subsidiaries shall have been obtained and be in full force and effect.
(g) Representations and Warranties. The Administrative Agent
shall have received a certificate of an officer of the Borrowers certifying that
each of the representations and warranties made by each Borrower in this
Agreement shall be true and correct in all material respects on and as of such
date as if made on and as of such date.
(h) No Default. The Administrative Agent shall have received a
certificate of an officer of the Borrowers certifying that no Default or Event
of Default shall have occurred and be continuing on such date or after giving
effect to the extensions of credit, if any, requested to be made on such date.
4.2 CONDITIONS TO EACH LOAN. The agreement of each Lender to
make any Loan requested to be made by it on any date pursuant to subsection 2.3
(including, without limitation, its initial Loan requested to be made by it) and
subsection 2.4 is subject to the satisfaction of the following conditions
precedent as of the date such Loan is requested to be made:
(a) Representations and Warranties. Each of the
representations and warranties made by each Borrower in this Agreement shall be
true and correct in all material respects on and as of such date as if made on
and as of such date, except that the representations and warranties contained in
subsections 3.4 and 3.5 shall not be restated on any Borrowing Date.
(b) No Default. No Event of Default and no Default shall have
occurred and be continuing on such date or after giving effect to the Loans
requested to be made on such date.
Each borrowing by either Borrower shall constitute a
representation and warranty by the Borrowers hereunder as of the date of each
such borrowing that the conditions in this subsection 4.2 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS OF THE BORROWERS
So long as any Commitment remains in effect, any Note remains
outstanding and unpaid or any other amount is owing to any Lender or the
Administrative Agent hereunder:
5.1 OBLIGATIONS. Each Borrower will pay and discharge, and
will cause each of its Subsidiaries to pay and discharge, at or before maturity
or before they become delinquent, all their respective material obligations and
liabilities, including, without limitation, tax liabilities, except (i) where
such obligations or liabilities may be contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
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provided on the books of such Borrower, or (ii) where the failure to do so,
individually or in the aggregate, would not reasonably be expected to result in
a material adverse effect on the business, consolidated financial position or
results of operations of the Borrowers and their Subsidiaries taken as a whole.
5.2 Financial Reporting Requirements. The LLC will:
(a) furnish to the Administrative Agent and each Lender fiscal
year audited financial statements or make available its Annual Report on Form
10-K via the XXXXX system of the Securities and Exchange Commission ("XXXXX") on
the Internet, in either case, as soon as available and in any event within 120
days after the end of each fiscal year of the LLC, which fiscal year audited
financial statements will include an audited consolidated balance sheet of the
LLC and its consolidated Subsidiaries as of the end of such fiscal year and the
related audited consolidated statements of income and cash flows and changes in
members' capital for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by independent
public accountants of nationally recognized standing;
(b) furnish to the Administrative Agent and each Lender
unaudited quarterly financial statements or make available its Quarterly Report
on Form 10-Q via XXXXX on the Internet, in either case, as soon as available and
in any event within 60 days after the end of each of the first three quarters of
each fiscal year of the LLC, which unaudited quarterly financial statements will
include a consolidated balance sheet of the LLC and its consolidated
Subsidiaries as of the end of such quarter and the related (i) consolidated
statement of income for such quarter and for the portion of the LLC's fiscal
year ended at the end of such quarter, and (ii) consolidated statement of cash
flows for the portion of the LLC's fiscal year ended at the end of such quarter,
setting forth in each case in comparative form (A) for the consolidated balance
sheet, the figures as of the end of the LLC's previous fiscal year, (B) for the
consolidated statement of income, the figures for the corresponding quarter and
the corresponding portion of the LLC's previous fiscal year and (C) for the
consolidated statement of cash flows, the figures for the corresponding portion
of the LLC's previous fiscal year, the furnishing or making available of such
financial statements shall constitute a certification (subject to normal
year-end adjustments) as to fairness of presentation and GAAP;
(c) furnish to the Administrative Agent and each Lender within
10 days of so furnishing or making available via XXXXX each set of financial
statements referred to in clause (a) above, a certificate of the chief financial
officer, Treasurer or the chief accounting officer of the LLC stating whether
there exists on the date of such certificate any Default or Event of Default
and, if any Default or Event of Default then exists, setting forth the details
thereof and the action which such Borrower is taking or proposes to take with
respect thereto;
(d) furnish to the Administrative Agent from time to time such
additional information regarding the financial position or business of the
Borrowers and their Subsidiaries as the Administrative Agent may reasonably
request.
5.3 NOTICES. Each Borrower as to itself will promptly furnish,
or cause to be furnished, to the Administrative Agent notice of: (i) the
occurrence of any Default or Event of
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Default hereunder; (ii) the institution of any litigation or proceeding
involving it or a Subsidiary that could reasonably be expected to materially and
adversely affect the business, financial condition or results of operations of
such Borrower and its Subsidiaries taken as a whole (whether or not the claim
asserted therein is considered to be covered by insurance); (iii) any default by
such Borrower or any of its Subsidiaries in the payment of principal of or
interest on Debt of such Borrower and/or its Subsidiaries in an aggregate amount
of $100,000,000 or more; and (iv) any downward change in the ratings publicly
announced by S&P or Xxxxx'x of the LLC's and LP's then current joint and several
Senior Debt.
5.4 MAINTENANCE OF PROPERTY; INSURANCE. Each Borrower 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 excepted, and (b) maintain, with financially sound
insurance companies, insurance in such amounts and against such risks as are
customarily maintained, in the reasonable judgement of the Borrowers, by
companies engaged in the same or similar businesses operating in the same or
similar locations; provided, that any such insurance may be maintained through a
program of self-insurance to the extent consistent with prudent business
practice.
5.5 COMPLIANCE WITH LAWS. Each Borrower will comply, and cause
each of its Subsidiaries to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of any Governmental
Authority (including, without limitation, ERISA and the rules and regulations
thereunder and Environmental Laws), except where the necessity of compliance
therewith is contested in good faith by appropriate proceedings or to the extent
that failure to comply therewith would not reasonably be expected to have a
material adverse effect on the business, financial position or results of
operations of the Borrowers and their Subsidiaries taken as a whole.
5.6 BOOKS AND RECORDS. Each Borrower will, and will cause each
Subsidiary to, keep proper books of record and account in which full, true and
correct entries in conformity with GAAP shall be made of all dealings and
transactions in relation to its business and activities.
5.7 FURTHER ASSURANCES. Each Borrower will from time to time,
at its expense, promptly execute and deliver to the Administrative Agent and the
Lenders such further instruments and documents, and take such further action,
that may be reasonably necessary, or that the Administrative Agent or the
Lenders may reasonably request, in order to enable the Administrative Agent and
the Lenders to exercise or enforce their respective rights or remedies under or
in connection with this Agreement and any Notes.
SECTION 6. NEGATIVE COVENANTS OF THE BORROWERS
So long as any Commitment remains in effect, any Note remains
outstanding and unpaid or any other amount is owing to any Lender or the
Administrative Agent hereunder:
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6.1 NEGATIVE PLEDGE. Neither Borrower and no Subsidiary will
create, assume or suffer to exist any Lien on any asset now owned or hereafter
acquired by it, except:
(a) any Lien existing on any asset of any Person at the time
such Person becomes a Subsidiary and not created in contemplation of such event;
(b) any Lien on any asset securing Debt incurred or assumed
for the purpose of financing all or any part of the cost of acquiring such
asset, provided, that such Lien attached to such asset concurrently with or
within six months after the acquisition thereof;
(c) any Lien on any asset of any Person existing at the time
such Person is merged or consolidated with or into the Borrower or a Subsidiary
and not created in contemplation of such event;
(d) any Lien existing on any asset prior to the acquisition
thereof by the Borrower or a Subsidiary and not created in contemplation of such
acquisition;
(e) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this subsection 6.1; provided, that the principal amount of
such Debt is not increased and such Debt is not secured by any additional
assets;
(f) Permitted Encumbrances;
(g) Liens to secure indebtedness of the pollution control or
industrial revenue bond type and Liens in favor of the United States or any
state thereof, or any department, agency, instrumentality or political
subdivision of any such jurisdiction, to secure any Debt incurred for the
purpose of financing all or any part of the purchase price or cost of
constructing or improving the property subject thereto; and
(h) Liens not otherwise permitted by the foregoing clauses of
this subsection 6.1, securing Debt in an aggregate principal amount at any time
outstanding not to exceed 10% of Consolidated Net Assets.
6.2 CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. Neither of
the Borrowers will merge with or into or consolidate with or sell, transfer,
lease or otherwise dispose of (in one transaction or in a series of transactions
and including by means of any liquidation, dissolution, merger or sale of
capital stock or otherwise) all or substantially all of its assets and those of
its Subsidiaries, taken as a whole, to a Person unless (i) the resulting,
surviving or transferee Person (the "Successor") shall (unless such Successor is
a Borrower) expressly assume, by amendment to this Agreement executed by the
Borrowers, the Successor and the Administrative Agent, all of the obligations of
such Borrower under this Agreement, the Loans and any Notes; (ii) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing; and (iii) such Successor, immediately after
giving effect to such transaction, shall have an Investment Grade Rating, if,
immediately before the transaction,
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the Senior Debt has an Investment Grade Rating; provided, if, immediately before
the transaction, the Senior Debt does not have an Investment Grade Rating, in no
event shall the rating by S&P and Xxxxx'x of the long term unsecured senior debt
securities of such Successor, immediately after the transaction, be less than
such ratings of the Senior Debt immediately prior to the transaction.
SECTION 7. EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the
following events:
(a) any principal of any Loan shall not be paid when due in
accordance with the terms hereof; or
(b) any interest on any Loan, any Commitment Fee, Utilization
Fee or Agent's/Arranger's Fees shall not be paid when due, and, in each case,
such amount shall remain unpaid for 5 days; or
(c) any representation or warranty made by either Borrower in
Section 3 or in any certificate, financial or other statement furnished by such
Borrower pursuant to this Agreement shall prove to have been incorrect in any
material adverse respect when made; or
(d) either Borrower shall fail to perform or observe any of
its covenants or agreements contained in Section 6 and such failure continues
unremedied for 30 days; or
(e) either Borrower shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement or any Notes, and any
such failure shall remain unremedied for 30 days after notice of such failure
shall have been given to the Borrowers by the Administrative Agent or the
Required Lenders; or
(f) either Borrower or any of its Material Subsidiaries shall
default beyond any applicable period of grace in any payment of any indebtedness
for any borrowed money for which such Borrower or such Material Subsidiary is
liable (other than indebtedness as to which the lenders thereof have agreed that
there shall be no recourse against the assets of the Borrower or any Material
Subsidiary, as the case may be, other than the assets securing such
indebtedness) in an amount then outstanding of $100,000,000 or more when due,
whether by its terms or as a result of such indebtedness becoming or being
declared due and payable prior to the date on which it could otherwise become
due and payable; or
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of either Borrower or any Material Subsidiary or their
respective debts, or of a substantial part of their respective 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 either Borrower or
any Material Subsidiary or for a substantial part of their respective 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;
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(h) (i) with respect to clause (A), Xxxxxxxx, Chevron or any
of their respective Affiliates shall as to either Borrower, and (ii) with
respect to all clauses in this subsection 7(h), either Borrower or any Material
Subsidiary, shall (A) 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, (B) 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
Section, (C) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for such Borrower or
such Material Subsidiary or for a substantial part of its assets, (D) file an
answer admitting the material allegations of a petition filed against it in any
such proceeding, (E) make a general assignment for the benefit of creditors or
(F) take any action for the purpose of effecting any of the foregoing; or
(i) one or more judgments or decrees shall be entered against
either Borrower or any of their respective Subsidiaries or any combination
thereof involving in the aggregate a liability (not paid or covered by
insurance) of $100,000,000 or more with respect to such Borrower or such
Subsidiary and the same 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
either Borrower or any Subsidiary to enforce any such judgment or judgments ; or
(j) an ERISA Event shall have occurred that, when taken
together with all other ERISA Events that have occurred, would reasonably be
expected to result in liability of the LLC and its Subsidiaries in an aggregate
amount that would reasonably be expected to result in a material adverse effect
on the business, consolidated financial position or results of operations of the
Borrowers and their Subsidiaries taken as a whole; or
(k) Xxxxxxxx and/or Chevron U.S.A. shall cease to own,
directly or indirectly, in the aggregate at least 50% of the Common Stock of,
and the total voting power of the outstanding Voting Stock of, each of LLC, LP,
and all partners in LP;
then, and in any such event, (A) if such event is an Event of Default specified
in subsections 7(g) or (h) above with respect to either Borrower, automatically
the Commitments shall terminate and the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and any Notes shall
immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice of
default to the Borrowers, declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii) with the consent
of the Required Lenders, the Administrative Agent may, or upon the request of
the Required Lenders, the Administrative Agent shall, by notice of default to
the Borrowers, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and any Notes to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this
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Section 7, presentment, demand, protest, notice of acceleration, notice of
intent to accelerate, and all other notices of any kind are hereby expressly
waived.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 APPOINTMENT OF ADMINISTRATIVE AGENT; NO OTHER DUTIES.
Subject to subsection 8.9, each Lender hereby irrevocably designates and
appoints Bank of America, N.A. as the Administrative Agent of such Lender under
this Agreement, and each such Lender irrevocably authorizes Bank of America,
N.A., as the Administrative Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agent by
the terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent. Without limiting
the generality of the foregoing sentence, the use of the term "agent" in this
Agreement with reference to the Administrative Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
8.2 DELEGATION OF DUTIES. The Administrative Agent may execute
any of its duties under this Agreement by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it in the absence of the Administrative Agent's gross negligence or
wilful misconduct.
8.3 EXCULPATORY PROVISIONS. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates (collectively, the "Administrative Agent-Related Persons") shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement (except for its or such
Person's own gross negligence or willful misconduct), or (ii) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by either Borrower or any officer thereof contained in this
Agreement or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any Notes or for
any failure of either Borrower to perform its obligations hereunder or
thereunder. No Administrative Agent-Related Person shall be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement, or to
inspect the properties, books or records of either Borrower or any Subsidiary or
Affiliate thereof.
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8.4 RELIANCE BY ADMINISTRATIVE AGENT. (a) The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, communication, signature, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex, teletype
or telephone message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to either Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the registered owner of any Note as the
owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent. The Administrative Agent shall be fully justified in failing or refusing
to take any action under this Agreement and any Note unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and any Notes in accordance with a request of the Required
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of any
Notes. Where this Agreement expressly permits or prohibits an action unless
Required Lenders otherwise determine, and in all other instances, the
Administrative Agent may, but shall not be required to, initiate any
solicitation for the consent or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in subsection 4.1, each Lender shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
either sent by the Administrative Agent to each Lender for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to a Lender.
8.5 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder (other than an Event of Default described in subsection 7(a))
unless the Administrative Agent has received written notice from a Lender or
either Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default", and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in Section 4 or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent. In the event that the Administrative
Agent receives such a notice or any notice pursuant to subsection 5.2 or 5.3,
the Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders in
accordance with Section 7; provided, that unless and until the Administrative
Agent shall have received any such directions, the Administrative Agent may
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(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable or in the best interests of the Lenders.
8.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that no Administrative Agent-Related Person
has made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any consent to and acceptance
of any assignment or review of the affairs of each Borrower or any of their
Subsidiaries or Affiliates, shall be deemed to constitute any representation or
warranty by any Administrative Agent-Related Person to any Lender, including
whether any Administrative Agent-Related Persons have disclosed material
information in their possession. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon any Administrative
Agent-Related Person or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of each Borrower and its Subsidiaries and
Affiliates, and all applicable bank regulatory laws relating to the transactions
contemplated hereby, and made its own decision to make its portion of the Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Administrative Agent-Related
Person or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
any Notes, and to make such investigation as it deems necessary to inform itself
as to the business, prospects, operations, property, financial and other
condition and creditworthiness of each Borrower and their Subsidiaries and
Affiliates. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of
either Borrower or any of their Subsidiaries or Affiliates which may come into
the possession of any Administrative Agent-Related Person.
8.7 INDEMNIFICATION. Whether or not the transactions
contemplated hereby are consummated, the Lenders agree to indemnify each
Administrative Agent-Related Person in its capacity as such (to the extent not
reimbursed by the Borrower within a reasonable period after demand has been made
by the Administrative Agent to the Borrowers for those amounts owing by either
Borrower, and without limiting the obligation of the Borrowers to do so),
ratably according to the respective principal amounts of their Loans and hold
harmless each Administrative Agent-Related Person, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including without limitation at any time following the payment of the Loans) be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement, or any documents contemplated by
or referred to herein or the transactions contemplated hereby or any action
taken or omitted by any Administrative Agent-Related Person under or in
connection with any of the foregoing; provided, that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from any Administrative Agent-Related Person's gross negligence
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or willful misconduct; provided, however, that no action taken in accordance
with the directions of Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including legal fees and expenses) incurred by the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, or any document contemplated by or
referred to herein, to the extent that the Administrative Agent is not
reimbursed for such expenses by or on behalf of either Borrower. The undertaking
in this Section shall survive the payment of all obligations hereunder and the
resignation or replacement of the Administrative Agent.
8.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of
America, N.A. and its Affiliates may make loans to, issue letters of credit for
the account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with either Borrower and its Subsidiaries and Affiliates as though Bank
of America, N.A. were not the Administrative Agent or the Same Day Lender
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America, N.A. or its
Affiliates may receive information regarding any Borrower or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of either Borrower or such Affiliate) and acknowledge that the
Administrative Agent shall be under no obligation to provide such information to
them. With respect to its Loans, Bank of America, N.A. shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Administrative Agent or the Same Day Lender.
8.9 SUCCESSOR OR SUBSTITUTE ADMINISTRATIVE AGENT. (a) The
Administrative Agent may resign as Administrative Agent upon not less than 10
days' notice to the Lenders and the Borrowers. If the Administrative Agent shall
resign as Administrative Agent under this Agreement, then the Borrowers shall
appoint from among the Lenders a successor agent for the Lenders; provided, if
an Event of Default under subsections 7.1(g) or (h) has occurred and is
continuing, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders. If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint a successor administrative agent
from among the Lenders (i) after consulting with the Lenders and (ii) unless an
Event of Default has occurred and is continuing, subject to the Borrowers'
consent (such consent not to be unreasonably withheld).
(b) Any successor or substitute agent pursuant to subsection
8.9(a) shall succeed to the rights, powers and duties of the Administrative
Agent, and the term "Administrative Agent" shall mean such successor or
substitute agent effective upon its acceptance of its appointment, and the
former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated upon the acceptance by such successor or substitute agent of
its appointment, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of Section
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8 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent under this Agreement.
8.10 CO-SYNDICATION AGENTS; CO-DOCUMENTATION AGENTS; LEAD
ARRANGER. None of the Lenders or other Persons or the Lead Arranger identified
on the facing page, in this Agreement, or signature pages of this Agreement as a
"co-syndication agent," "co-documentation agent," "managing agent," "co-agent,"
"lead arranger," or "book manager" shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such. Without limiting the foregoing, none of the
Lenders or other Persons or the Lead Arranger so identified as a "co-syndication
agent," "co-documentation agent," "managing agent," "co-agent," "lead arranger,"
or "book manager" shall have, or be deemed to have, any fiduciary relationship
with any Lender. Each Lender acknowledges that it has not relied, and will not
rely, on any of the Lenders or the Lead Arranger so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
SECTION 9. MISCELLANEOUS
9.1 AMENDMENTS AND WAIVERS. Neither this Agreement, any Note,
nor any terms hereof or thereof may be waived, amended, supplemented or
modified, except in accordance with the provisions of this subsection. The
Required Lenders may, or with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, enter into with the Borrowers
written waivers, amendments, supplements or modifications hereto for the purpose
of adding any provisions to this Agreement or any Notes or changing in any
manner the rights of the Lenders or the Borrowers hereunder or thereunder or
waiving, on such terms and conditions as may be specified in such instrument,
any of the requirements of this Agreement or any Notes or any Default or Event
of Default and its consequences; provided, however, that no such waiver and no
such amendment, supplement or modification shall (a) reduce the amount or extend
the scheduled date of maturity of any Loan or of any mandatory prepayment
thereof, reduce the stated rate of any interest thereon or fee payable hereunder
or extend the scheduled date of any payment thereof or increase the aggregate
amount or extend the expiration date of any Lender's Commitment, in each case
without the written consent of each Lender affected thereby, (b) amend, modify
or waive any provision of this subsection 9.1 or reduce the percentage specified
in the definition of Required Lenders, or consent to the assignment or transfer
by either Borrower of any of its rights and obligations under this Agreement, or
release either Borrower from liability hereunder or under any Note, in each case
without the written consent of all the Lenders, or (c) amend, modify or waive
any provision of Section 8 or otherwise affect the rights or duties of the
Administrative Agent without the written consent of the then Administrative
Agent. In addition, no such agreement shall amend, modify or otherwise affect
the rights or duties of the Same Day Lender under this Agreement without the
prior written consent of the Same Day Lender. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders
and shall be binding upon the Borrowers, the Lenders, the Administrative Agent
and all future holders of the Loans. In the case of any waiver, the Borrowers,
the Lenders and the Administrative Agent shall be restored to their former
positions and rights hereunder and under the outstanding Loans, and any Default
or Event of Default waived shall be deemed to be cured and not continuing; but
no such waiver shall
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extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon.
9.2 NOTICES. Unless otherwise expressly permitted to be given
by telephone (not voicemail), all notices, requests, demands or other
communications to or upon the respective parties hereto to be effective shall be
in writing (including by telecopy) and shall be deemed to have been duly given
or made when delivered or on the fourth Business Day after depositing the same
in the mails, registered or certified mail, postage prepaid or in the case of
notice by telecopy, when receipt is confirmed. All notices shall be addressed as
follows in the case of the Borrowers and the Administrative Agent, and as set
forth in Schedule I in the case of any Lender, or to such other address as any
of the parties hereto and any future holders of the Loans may designate by
written notice:
The Borrowers: Chevron Xxxxxxxx Chemical Company LLC and
Chevron Xxxxxxxx Chemical Company LP
0000 XxXxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Treasurer
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Notice for Borrowings: Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
The Administrative Agent: Bank of America, N.A.
(for all notices other than 000 Xxxx Xxxxxx, Xxxxx 0000
notices of borrowing) Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
The Same Day Lender Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
provided, that any notice, request, demand or other communication to or upon the
Administrative Agent or the Lenders pursuant to subsections 2.3, 2.4, 2.5(b) and
(c), and 2.7 shall not be effective until received. Electronic mail and internet
and intranet websites may be used to distribute routine communications, such as
financial statements and other information, and to
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distribute agreements and other documents to be signed by Administrative Agent,
Syndication Agent, Documentation Agent, Lead Arranger, Lenders and Borrowers. No
other legally binding or time-sensitive communication or request for a Loan or a
continuation or conversion thereof may be sent by electronic mail without the
consent of, or confirmation to, the intended recipient in each instance.
9.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
9.4 CONFIDENTIALITY. Each Lender shall maintain in confidence
and not disclose to any Person any non-public information furnished to it
pursuant to this Agreement and designated by either Borrower as such
("Confidential Information") without the prior consent of such Borrower, subject
to each Lender's (a) obligation to disclose any Confidential Information
pursuant to a request or order under applicable laws and regulations or pursuant
to a subpoena or other legal process, (b) right to disclose any Confidential
Information to other Lenders, to bank examiners, to its Affiliates, auditors and
counsel, and to any prospective Purchasing Lender pursuant to subsection 9.6(c)
approved by such Borrower (other than during the existence of an Event of
Default under subsection 7.1(g) or (h)), (c) right to disclose any Confidential
Information in connection with any litigation or dispute or the exercise of any
remedy hereunder involving the Administrative Agent or the Lenders and either
Borrower or any of its Subsidiaries; provided, however, that Confidential
Information disclosed pursuant to clause (b) or (c) of this sentence shall be so
disclosed subject to such procedures as are reasonably calculated to maintain
the confidentiality thereof. Notwithstanding the foregoing provisions of this
subsection 9.4, (a) the foregoing obligation of confidentiality shall not apply
to any Confidential Information that was known to such Lender or any of their
respective Affiliates prior to the time it received such Confidential
Information from either Borrower pursuant to this Agreement, other than as a
result of the disclosure thereof by a Person who, to the knowledge or reasonable
belief of such Lender, was prohibited from disclosing it by any duty of
confidentiality arising (under this Agreement or otherwise) by contract or law,
and (b) the foregoing obligation of confidentiality shall not apply to any
Confidential Information that becomes part of the public domain independently of
any act of such Lender not permitted hereunder or when identical or
substantially similar information is received by such Lender, without
restriction as to its disclosure or use, from a Person who was not prohibited
from disclosing it by any duty of confidentiality arising (under this Agreement
or otherwise) by contract or law. The obligations of each Lender under this
subsection 9.4 shall survive the termination of this Agreement and the payment
of any Notes and all other amounts payable hereunder.
9.5 PAYMENT OF EXPENSES; INDEMNIFICATION. (a) The Borrowers
agree (i) to pay or reimburse the Administrative Agent and the Lead Arranger for
all their out-of-pocket costs and expenses incurred in connection with the
development, preparation, negotiation, execution and syndication of this
Agreement and any Notes and any other documents prepared in
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connection herewith, and the consummation of the transactions contemplated
hereby and thereby, including, without limitation, the reasonable legal fees and
disbursements of Xxxxxx and Xxxxx, LLP, counsel to the Administrative Agent, but
excluding all other legal fees and disbursements, (ii) to pay or reimburse the
Administrative Agent for all their costs and expenses incurred in connection
with any amendment, supplement or modification requested by either or both
Borrowers to this Agreement and any Notes and any other documents prepared in
connection herewith, including, without limitation, the reasonable legal fees
and disbursements of counsel to the Administrative Agent, but excluding all
other legal fees and disbursements, and (iii) to pay or reimburse the
Administrative Agent and the Lenders in connection with the enforcement or
preservation of any rights under this Agreement, any Notes and any such other
documents, including, without limitation, legal fees and disbursements of
counsel to the Administrative Agent and counsel to each Lender.
(b) The Borrowers shall indemnify the Administrative Agent,
the Syndication Agent, the Documentation Agent, the Lead Arranger and the
Lenders and any of their respective Affiliates, and their respective directors,
officers, employees and agents (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the transactions contemplated
hereby, (ii) any Loan or the use of the proceeds therefrom, or (iii) any actual
or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided, that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses resulted in whole or in
part from the gross negligence or wilful misconduct of such Indemnitee.
9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; PURCHASING
LENDERS. (a) This Agreement shall be binding upon and inure to the benefit of
the Borrowers, the Lenders, the Administrative Agent, all future holders of the
Loans and their respective successors and assigns, except that neither Borrower
may assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may, in accordance with applicable law, at any
time sell to one or more banks or other entities (each, a "Participant")
participating interests in any Loan owing to such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interests of such Lender
hereunder. In the event of any such sale by a Lender of a participating interest
to a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of its Loan for all purposes under this Agreement, and the Borrowers and
the Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to
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approve any amendment, modification or waiver of any provision of this
Agreement; provided, that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in clause (a) of the proviso to subsection 9.1
that affects such Participant. Without affecting the limitations in the
preceding sentences, the participating banks or other financial institutions,
shall not be Lenders hereunder for any purpose except, if the participation
agreement so provides, each Participant shall be entitled to the benefits of
subsections 2.14, 2.16, and 2.17 with respect to its participation in the
Commitments and the Loans outstanding from time to time as if it were a Lender;
provided, that no Participant shall be entitled to receive any greater amount
pursuant to any such subsection than the transferor Lender would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer occurred; and
provided further, that, in the case of subsection 2.16, such Participant shall
have complied with the requirements of that subsection.
(c) Each Lender may, in accordance with applicable law, with
the consent of the Borrowers (which shall not be unreasonably withheld and which
will not be required during the existence of an Event of Default under
subsections 7.1(g) or (h)), the Same Day Lender and the Administrative Agent
(except no consent of the Borrowers or the Administrative Agent shall be
required in the case of an assignment to a Lender or an Affiliate of a Lender)
sell or assign to one or more Lenders or additional banks or other entities (a
"Purchasing Lender") all or a part of its rights and obligations under this
Agreement and any Notes pursuant to an Assignment and Acceptance executed by
such Purchasing Lender, such transferor Lender, the Administrative Agent, the
Same Day Lender and the Borrowers; provided, that, if such sale is not to one or
more Lenders and is to an additional lender, (i) such sale shall be in a minimum
amount of $10,000,000 and (ii) the Commitment retained by such transferor Lender
after such sale shall be at least $25,000,000, unless the transferor Lender
sells all of its Commitment hereunder. Upon (i) the execution of such Assignment
and Acceptance, (ii) delivery of any executed forms required by subsection 2.16,
(iii) recordation of such transfer in the Register and (iv) payment by such
Purchasing Lender of the registration and processing fee described in subsection
9.6(e), from and after the Transfer Effective Date determined pursuant to such
Assignment and Acceptance (which shall not be earlier than the date which is
five Business Days after the date the Administrative Agent has received the
Assignment and Acceptance), such Purchasing Lender shall for all purposes be a
Lender party to this Agreement and shall have all the rights and obligations of
a Lender under this Agreement to the same extent as if it were an original party
hereto with a Commitment as set forth therein and the transferor Lender shall be
released from any further obligations under this Agreement to the extent of such
assigned interests. Such Assignment and Acceptance shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Purchasing Lender and the resulting adjustment of the
Commitments and the Commitment Percentages arising from the purchase by such
Purchasing Lender of all or a portion of the rights and obligations of such
transferor Lender under this Agreement. Upon the consummation of any transfer to
a Purchasing Lender pursuant to this subsection 9.6(c), the transferor Lender,
the Administrative Agent and the Borrowers shall make appropriate arrangements
so that, if required, a replacement Note is issued to such transferor Lender and
a new Note or, as appropriate, a replacement Note, is issued to such Purchasing
Lender, in each case in principal amounts reflecting their respective
Commitments.
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Such new Notes shall be dated the Closing Date and shall otherwise be in the
form of the Notes replaced thereby.
(d) The Administrative Agent shall maintain, as agent for the
Borrowers, at its address referred to in subsection 9.2, a copy of each
Assignment and Acceptance delivered to it and a register (the "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 from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrowers, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register as the owner of the Loan recorded
therein for all purposes of this Agreement. Any assignment of any Loan, whether
or not evidenced by a Note, shall be effective only upon appropriate entries
with respect thereto being made in the Register. Any assignment or transfer of
all or part of a Loan evidenced by a Note shall be registered on the Register
only upon surrender for registration of assignment or transfer of the Note
evidencing such Loan, accompanied by a duly executed Assignment and Acceptance,
and thereupon one or more new Notes shall be issued to the designated Assignee.
The Register shall be available for inspection by either Borrower or any Lender
at any reasonable time and from time to time upon reasonable prior notice. Upon
the written request of the Borrowers, the Administrative Agent shall deliver
promptly a copy of the Register to the Borrowers.
(e) Upon its receipt of an Assignment and Acceptance executed
by a transferor Lender, a Purchasing Lender, the Borrowers, the Same Day Lender,
and the Administrative Agent, together with payment by the Purchasing Lender to
the Administrative Agent of a registration and processing fee of $3,500 from
such Purchasing Lender and/or such transferor Lender (including in the case of
assignments to Affiliates of assigning Lenders), the Administrative Agent shall
(i) promptly accept such Assignment and Acceptance, (ii) on the Transfer
Effective Date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Lenders and the Borrowers.
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Purchasing Lender (each, a "Transferee") and any prospective
Transferee any and all financial information (other than Confidential
Information, except as permitted by subsection 9.4) in such Lender's possession
concerning such Borrower which has been delivered to such Lender by such
Borrower pursuant to this Agreement or which has been delivered to such Lender
by such Borrower in connection with such Lender's credit evaluation of such
Borrower prior to entering into this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection 9.6 concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law; provided that no such
assignment, whether to a Federal Reserve Bank or other entity, shall release a
Lender from any of its obligations hereunder or substitute any such Federal
Reserve Bank or other entity for such
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Lender as a party hereto or permit an absolute assignment to occur other than in
accordance with such provisions of this subsection 9.6.
9.7 ADJUSTMENTS; SET-OFF. (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular
Lender, if any Lender (a "benefitted Lender") shall, at any time after the Loans
have been declared to be due and payable pursuant to Section 7, receive any
payment of all or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in subsection 7(f),
or otherwise) in a greater proportion than any such payment to and collateral
received by any other Lender, if any, in respect of such other Lender's Loans,
or interest thereon, such benefitted Lender shall purchase for cash from the
other Lenders such portion of each such other Lender's Loans, or shall provide
such other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefitted Lender to share the
excess payment or benefits of such collateral or proceeds ratably with each of
the Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. Each Borrower agrees that
each Lender purchasing a portion of another Lender's portion of the Loan
pursuant to this subsection 9.7(a) may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such portion
as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of an Event of
Default each Lender shall have the right, without prior notice to the Borrowers,
any such notice being expressly waived by each Borrower to the extent permitted
by applicable law, to set off and appropriate and apply against the obligations
under this Agreement any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender to or
for the credit or the account of either Borrower. Each Lender agrees promptly to
notify the Borrowers and the Administrative Agent after any such set-off and
application made by such Lender, provided, that the failure to give such notice
shall not affect the validity of such set-off and application.
9.8 COUNTERPARTS. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Agreement signed by all the
parties hereto shall be lodged with each Borrower and the Administrative Agent.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be as effective as delivery of a manually executed counterpart of
this Agreement.
9.9 GOVERNING LAW. (a) THIS AGREEMENT AND ANY NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
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(b) Notwithstanding anything in subsection 9.9(a) to the
contrary, nothing in this Agreement or in any Note shall be deemed to constitute
a waiver of any rights which any Lender may have under applicable federal law
relating to the amount of interest which any Lender may contract for, take,
receive or charge in respect of any Loans, including any right to take, receive,
reserve and charge interest at the rate allowed by the laws of the state where
such Lender is located. To the extent that Texas law is applicable to the
determination of the Highest Lawful Rate, the Lenders and each Borrower agree
that (i) if Chapter 303 of the Texas Finance Code, as amended, is applicable to
such determination, the weekly rate ceiling (formerly known as the indicated
(weekly) rate ceiling in Article 1.4, Subtitle 1, Title 79, of the Revised Civil
Statutes of Texas, as amended) as computed from time to time shall apply;
provided, that, to the extent permitted by such Article, the Administrative
Agent may from time to time by notice to the Borrowers revise the election of
such interest rate ceiling as such ceiling affects the then current or future
balances of the Loans; and (ii) the provisions of Chapter 346 of the Texas
Finance Code, as amended (formerly found in Chapter 15 of Subtitle 3, Title 79,
of the Revised Civil Statutes of Texas, 1925, as amended) shall not apply to
this Agreement or any Note issued hereunder.
9.10 JURISDICTION; VENUE. Any legal action or proceeding with
respect to this Agreement may be brought in the courts of the State of New York
or of the United States of America for the Southern District of New York and, by
execution and delivery of this Agreement, each Borrower hereby accepts for and
in respect of its property, generally, irrevocably and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts. Each Borrower further
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail postage prepaid, to it at its address referred to
in subsection 9.2. Nothing herein shall affect the right of the Administrative
Agent or any Lender to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against either Borrower in any
other jurisdiction. Each Borrower hereby irrevocably and unconditionally waives
any objection that it may now or hereafter have to the venue of any action
described in this subsection 9.10, or that such proceeding was brought in an
inconvenient court, and agrees not to plead or claim the same.
9.11 SURVIVAL AND TERMINATION OF AGREEMENT. All covenants,
agreements, representations and warranties made herein and in any certificate,
document or statement delivered pursuant hereto or in connection herewith shall
survive the execution and delivery of this Agreement and any Notes, regardless
of any investigation made by any such other party or on its behalf and
notwithstanding that the Agents 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 so long as any
Loan or any amount payable to any Lender under or in connection with this
Agreement or any Loan is unpaid and so long as the Commitments have not expired
or terminated. It being expressly understood that the obligations of the
Borrowers to the Administrative Agent and each Lender under subsections 2.14,
2.16, 2.17 and 9.5 and the obligations of the Lenders to the Administrative
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Agent under subsection 8.7 shall survive the payment in full of the Loans and
all other amounts payable hereunder; provided, that with respect to amounts
payable under subsections 2.14, 2.16, 2.17, 8.7 and 9.5, such amounts shall be
deemed to have been paid if no claim therefor is made within one year after
payment in full of the Loans and all other amounts payable hereunder.
Notwithstanding the foregoing, no Lender shall be entitled to any payments from
either Borrower under subsection 2.14, 2.16, 2.17 or 9.5 unless, within one year
of such Lender's obtaining actual knowledge of the occurrence of the event or
events giving rise to the operation of any such subsection, it has notified the
Borrowers of the occurrence of such event or events; provided, however, that the
requirement for notice set forth herein shall have no effect on the nature or
scope of the provisions of such subsections other than as expressly stated in
this subsection 9.11.
9.12 ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement of the parties hereto with respect to its subject matter, and
supersedes all previous understandings, written or oral, with respect thereto.
9.13 WAIVER OF JURY TRIAL. EACH BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY NOTE AND FOR
ANY COUNTERCLAIM THEREIN.
9.14 SEVERABILITY. Any provision of this Agreement or of any
Note which is prohibited, unenforceable or not authorized in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or thereof or affecting the validity, enforceability
or legality of any such provision in any other jurisdiction.
9.15 JOINT AND SEVERAL LIABILITY. (a) Any and all obligations
and liabilities of either Borrower under this Agreement shall be the joint and
several obligation and the joint and several liability of the Borrowers. Except
as expressly set forth in Section 7, each Borrower waives presentation to,
demand of payment from and protest to the Lenders of any of the obligations and
liabilities of the other Borrower hereunder and also waives notice of protest
for nonpayment and notice of acceleration and notice of intent to accelerate,
and all other notices of any kind. Except as expressly set forth in Section 7,
each Borrower waives notice of any default by the other Borrower hereunder. The
obligations and liabilities of each Borrower hereunder shall not be affected by
(i) the failure of any Lender to assert any claim or demand or to enforce any
right or remedy against the other Borrower or any other person under this
Agreement or any Notes; (ii) any extension or renewal of any thereof; (iii) any
rescission, waiver, amendment or modification of any of the terms or provisions
of this Agreement or any Notes; (iv) the release of any obligation or liability
of the other Borrower by any Lender; (v) the failure of any Lender to exercise
any right or remedy against any Borrower; (vi) any change in the ownership of
either of the Borrowers; or (vii) any winding up, reorganization, arrangement,
liquidation, reconstruction or similar proceeding with respect to either of the
Borrowers or any Lender.
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(b) If and to the extent that either of the Borrowers shall
fail to make any payment with respect to any of the obligations hereunder as and
when due or to perform any of such obligations in accordance with the terms
thereof, then in each such event, the other Borrower will make such payment with
respect to, or perform, such obligation.
(c) The obligations of each Borrower under the provisions of
this subsection 9.15 constitute full recourse obligations of such Borrower,
enforceable in accordance with the terms of this Agreement.
(d) The provisions of this subsection 9.15 are made for the
benefit of the Lenders and their successors and assigns, and may be enforced by
the Administrative Agent and the Lenders from time to time against either of the
Borrowers as often as occasion therefor may arise and without requirement on the
part of the Lenders first to marshal any of their claims or to exercise any of
their rights against the other Borrower or to exhaust any remedies available to
them against the other Borrower or to resort to any other source or means of
obtaining payment of all or any part of the obligations hereunder or to elect
any other remedy. The provisions of this subsection 9.15 shall remain in effect
until all of the obligations hereunder shall have been paid in full or otherwise
fully satisfied and all of the Commitments shall have terminated or expired. If
at any time, any payment, or any part thereof, made in respect of all or any
part of the obligations hereunder, is rescinded or must otherwise be restored or
returned by any of the Lenders upon the insolvency, bankruptcy or reorganization
of a Borrower, or otherwise, the provisions of this subsection 9.15 will
forthwith be reinstated in effect, as though such payment had not been made.
48
53
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
CHEVRON XXXXXXXX CHEMICAL COMPANY LLC
By: /s/ X.X. XxXxx
-----------------------------------------
X.X. XxXxx
Vice President and Treasurer
CHEVRON XXXXXXXX CHEMICAL COMPANY LP
By: /s/ X.X. XxXxx
----------------------------------------
X.X. XxXxx
Vice President and Treasurer
54
Signature Page to the
364-Day Credit Agreement
BANK OF AMERICA, N.A., as Administrative Agent,
Same Day Lender and a Lender
By: /s/ Xxxxxx Xxx
----------------------------------------
Xxxxxx X. Xxx
Managing Director
55
Signature Page to the
364-Day Credit Agreement
THE CHASE MANHATTAN BANK
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
56
Signature Page to the
364-Day Credit Agreement
ABN AMRO BANK N.V.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Group Vice President
By: /s/ Xxxxxx Noique
---------------------------------------
Name: Xxxxxx Noique
Title: Group Vice President
57
Signature Page to the
364-Day Credit Agreement
THE ROYAL BANK OF SCOTLAND plc
By: /s/ X.X. Dundee
---------------------------------------
Name: Xxxxxxxx X. Dundee
Title: Senior Vice President
58
Signature Page to the
364-Day Credit Agreement
BARCLAYS BANK PLC
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Director
59
Signature Page to the
364-Day Credit Agreement
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
60
Signature Page to the
364-Day Credit Agreement
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx X.X. Xxxxxx
Title: Senior Vice President
61
Signature Page to the
364-Day Credit Agreement
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Associate Director
By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Associate Director
62
Signature Page to the
364-Day Credit Agreement
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN
ISLANDS BRANCH
By: /s/ X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Senior Vice President
By: /s/ X. X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
63
Signature Page to the
364-Day Credit Agreement
THE INDUSTRIAL BANK OF JAPAN, LIMITED, NEW YORK
BRANCH
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, Houston
Office
64
Signature Page to the
364-Day Credit Agreement
THE FUJI BANK, LIMITED
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President & Manager
65
Signature Page to the
364-Day Credit Agreement
CITIBANK, N.A.
By: /s/ C. A. Sheridan
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
66
Signature Page to the
364-Day Credit Agreement
BANCA NAZIONALE DEL LAVORO S.P.A.,
NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
67
Signature Page to the
364-Day Credit Agreement
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ X. Xxxxxxxxx
---------------------------------------
Name: X. Xxxxxxxxx
Title: VP & Manager
68
Signature Page to the
364-Day Credit Agreement
BANK ONE, N.A. (Main Office-Chicago)
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
69
Signature Page to the
364-Day Credit Agreement
IntesaBci - New York Branch,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice-President
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice-President
70
Signature Page to the
364-Day Credit Agreement
RIYAD BANK, HOUSTON AGENCY
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: EVP & Executive Manager
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Head of
Marketing
71
Signature Page to the
364-Day Credit Agreement
BANCA MONTE DEI PASCHI DI SIENA S.P.A.
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: First Vice President &
Deputy General Manager
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
72
Signature Page to the
364-Day Credit Agreement
SUNTRUST BANK
By: /s/ Xxxxx Xxx Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
73
Signature Page to the
364-Day Credit Agreement
BANCA DI ROMA - CHICAGO BRANCH
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
By: /s/ X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
74
Schedule I
LENDER INFORMATION
LENDER'S MAXIMUM
LENDER COMMITMENT LENDER'S LENDING OFFICE
------ ---------------- -----------------------
Administrative Agent
Bank of America, N.A. $60,000,000 Address for Notices:
Bank of America, N.A.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Co-Syndication Agents
The Chase Manhattan Bank $60,000,000 Address for Notices:
The Chase Manhattan Bank
The Loan and Agency Services Group
One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
The Chase Manhattan Bank
000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Schedule I - page 1
75
LENDER'S MAXIMUM
LENDER COMMITMENT LENDER'S LENDING OFFICE
------ ---------------- -----------------------
ABN AMRO Bank N.V. $60,000,000.00 Address for Notices:
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Credit Administration
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Loan Administration
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Co-Documentation Agents
The Royal Bank of Scotland plc $60,000,000 Address for Notices:
The Royal Bank of Scotland plc
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
The Royal Bank of Scotland plc
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Schedule I - page 2
76
LENDER'S MAXIMUM
LENDER COMMITMENT LENDER'S LENDING OFFICE
------ ---------------- -----------------------
Co-Documentation Agents, continued
Barclays Bank PLC $60,000,000 Address for Notices:
Barclays Bank PLC
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
Barclays Bank PLC
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Managing Agents
The Bank of New York $37,500,000 Address for Notices:
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Schedule I - page 3
77
LENDER'S MAXIMUM
LENDER COMMITMENT LENDER'S LENDING OFFICE
------ ---------------- -----------------------
Managing Agents, continued
Sumitomo Mitsui Banking Corporation $37,500,000 Address for Notices:
Sumitomo Mitsui Banking Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
Sumitomo Mitsui Banking Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Westdeutsche Landesbank Girozentrale, $37,500,000 Address for Notices:
New York Branch Westdeutsche Landesbank Girozentrale,
New York Branch
1211 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
Westdeutsche Landesbank Girozentrale,
New York Branch
1211 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Schedule I - page 4
78
LENDER'S MAXIMUM
LENDER COMMITMENT LENDER'S LENDING OFFICE
------ ---------------- -----------------------
Managing Agents, continued
Bayerische Landesbank Girozentrale, Cayman $37,500,000 Address for Notices:
Islands Branch Bayerische Landesbank Girozentrale,
Cayman Islands Branch
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
Bayerische Landesbank Girozentrale,
Cayman Islands Branch
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Co-Agents
The Industrial Bank of Japan, Limited, $30,000,000 Address for Notices:
New York Branch The Industrial Bank of Japan, Limited,
New York Branch
Three Xxxxx Center
Suite 3030
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000 x000
Lending Office:
The Industrial Bank of Japan, Limited,
New York Branch
1251 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Schedule I - page 5
79
LENDER'S MAXIMUM
LENDER COMMITMENT LENDER'S LENDING OFFICE
------ ---------------- -----------------------
Co-Agents, continued
The Fuji Bank, Limited $30,000,000 Address for Notices:
The Fuji Bank, Limited
One Houston Center
0000 XxXxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
The Fuji Bank, Limited
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Citibank, N.A. $25,000,000 Address for Notices:
Citibank, N.A.
000 Xxxxxxxxx Xx., 00xx Xxxxx
Global Chemical/Pharmaceuticals Group
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx, MD
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
Citibank, N.A.
0 Xxxx'x Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Schedule I - page 6
80
LENDER'S MAXIMUM
LENDER COMMITMENT LENDER'S LENDING OFFICE
------ ---------------- -----------------------
Co-Agents, continued
Banca Nazionale del Lavoro S.p.A., $25,000,000 Address for Notices:
New York Branch Banca Nazionale del Lavoro S.p.A.,
New York Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
Banca Nazionale del Lavoro S.p.A.,
New York Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: X. Xxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
The Bank of Tokyo-Mitsubishi, Ltd. $25,000,000 Address for Notices:
The Bank of Tokyo-Mitsubishi, Ltd.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
The Bank of Tokyo-Mitsubishi, Ltd.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Schedule I - page 7
81
LENDER'S MAXIMUM
LENDER COMMITMENT LENDER'S LENDING OFFICE
------ ---------------- -----------------------
Co-Agents, continued
Bank One, NA (Chicago) $25,000,000 Address for Notices:
Bank One, NA
000 Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
Bank One, NA
1 Bank Xxx Xxxxx
00xx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
IntesaBci New York Branch $25,000,000 Address for Notices:
IntesaBci New York Branch
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
IntesaBci New York Branch
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Schedule I - page 8
82
LENDER'S MAXIMUM
LENDER COMMITMENT LENDER'S LENDING OFFICE
------ ---------------- -----------------------
Other Lenders
Riyad Bank, Houston Agency $20,000,000 Address for Notices:
Riyad Bank
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
Riyad Bank
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Banca Monte dei Paschi di Siena S.p.A. $15,000,000 Address for Notices:
Banca Monte dei Paschi di Siena S.p.A.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
Banca Monte dei Paschi di Siena S.p.A.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
SunTrust Bank $15,000,000 Address for Notices:
SunTrust Bank
303 Peachtree St. NE
3rd Floor, M.C. 1929
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
SunTrust Bank
25 Park Place
21st Floor, M.C. 1941
Xxxxxxx, XX 00000
Attention: Xxxxxxxxx Farnsbaugh
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Schedule I - page 9
83
LENDER'S MAXIMUM
LENDER COMMITMENT LENDER'S LENDING OFFICE
------ ---------------- -----------------------
Banca di Roma - Chicago Branch $15,000,000 Address for Notices:
Banca di Roma - Chicago Branch
000 Xxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Lending Office:
Banca di Roma - Chicago Branch
000 Xxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Schedule I - page 10
84
Annex A
364-DAY PRICING GRID
Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 5
------- ------- ------- ------- -------
Senior Debt Ratings A/A2 or higher A-/A3 BBB+/Baa1 BBB/Baa2 BBB-/Baa3 or lower
(bps) (bps) (bps) (bps) (bps)
Applicable Eurodollar Margin(1,2) 25 35 50 62.5 87.5
Applicable Utilization Fee Rate - Above 33% 10 10 12.5 12.5 12.5
Usage(1)
Applicable Commitment Fee Rate(1) 6.5 7.5 10.0 12.5 17.5
The foregoing Pricing Grid is based upon the Senior Debt ratings as
determined from time to time by S&P and Xxxxx'x.
----------
(1) The Commitment Fee, Utilization Fee and Applicable Eurodollar Margins shall
be determined by the highest of the two ratings assigned by S&P and Xxxxx'x to
the Senior Debt. If the two ratings for the Senior Debt are two or more rating
levels apart, the Commitment Fee, Utilization Fee and Applicable Eurodollar
Margin shall be determined by reference to the rating level that is one rating
level below the highest rating level in which the Senior Debt's ratings fall.
(2) If, in accordance with subsection 2.2(a), the Borrowers elect not to pay all
or a portion of the unpaid principal amount of the Loans until the first
anniversary of the 364-Day Commitment Termination Date, the Applicable
Eurodollar Margin shall increase by an incremental 25 bps per Level. This
increment to the Applicable Eurodollar Margin shall apply only to any Term-out
Loan.
85
Exhibit A to the
364-Day Credit Agreement
FORM OF 364-DAY NOTE
New York, New York
July 2, 2001
FOR VALUE RECEIVED, CHEVRON XXXXXXXX CHEMICAL COMPANY LLC, a Delaware
limited liability company (the "LLC"), CHEVRON XXXXXXXX CHEMICAL COMPANY LP, a
Delaware limited partnership which is wholly-owned, indirectly, by the LLC (the
"LP"; and together with the LLC, the "Borrowers" and, each, a "Borrower"),
jointly and severally promise to pay to the order of [Insert Name of Lender]
(the "Lender") at the office of Bank of America, N.A., as Administrative Agent,
located at 000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000-0000, Attention: Corporate Loan
Funds, (i) on the 364-Day Commitment Termination Date (as defined in the 364-Day
Credit Agreement referred to below) or (ii) if in accordance with subsection
2.2(a) the Borrowers have extended the date upon which the principal amount of
the Loans of the Lenders outstanding as of the 364-Day Commitment Termination
Date will be due and payable, on the first anniversary of the 364-Day Commitment
Termination Date; in each case in lawful money of the United States of America
and in immediately available funds, the principal amount equal to the aggregate
unpaid principal amount of all Loans made by the Lender to the Borrowers
pursuant to subsections 2.1, 2.2, 2.3 and 2.4 of the 364-Day Credit Agreement.
The Borrowers, jointly and severally, hereby further agree to pay interest on
the unpaid principal amount of the Loans from time to time outstanding from the
date hereof until payment in full thereof at the rates per annum, and on the
dates, set forth in subsection 2.10 of the 364-Day Credit Agreement. The holder
of this Note is authorized to record the date and amount of each Loan made by
the Lender, each payment of principal with respect thereto and each conversion
or continuation made pursuant to subsection 2.7 of the 364-Day Credit Agreement,
on the schedules annexed hereto and made a part hereof, or on a continuation
thereof which shall be attached hereto and made a part hereof, and any such
recordation shall constitute prima facie evidence, absent manifest error, of the
accuracy of the information recorded; provided, that failure by the Lender to
make any such recordation or any error in such recordation shall not affect the
obligations of the Borrowers hereunder or under the 364-Day Credit Agreement.
This Note is one of the Notes referred to in the 364-Day Credit
Agreement, dated as of the date hereof, among LLC and LP, each as a Borrower,
the Lenders parties thereto, Bank of America, N.A., as the Administrative Agent,
and the other agents therein named (as amended, supplemented or otherwise
modified from time to time, the "364-Day Credit Agreement"; terms defined
therein and not otherwise defined herein being used herein as therein defined),
is entitled to the benefits thereof and is subject to optional and mandatory
prepayment in whole or in part as provided therein. The Borrowers agree to pay
all costs and expenses incurred by the Lender in connection with the enforcement
of its rights and remedies under the 364-Day Credit Agreement and this Note.
Exhibit A - page 1
86
Upon the occurrence of any one or more of the Events of
Default specified in the 364-Day Credit Agreement, all amounts then remaining
unpaid on this Note shall become, or may be declared to be, immediately due and
payable all as provided therein.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
CHEVRON XXXXXXXX CHEMICAL COMPANY LLC
By:
------------------------------------
Title:
------------------------------------
CHEVRON XXXXXXXX CHEMICAL COMPANY LP
By:
------------------------------------
Title:
------------------------------------
Exhibit A - page 2
87
Schedule A
to Note
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
Amount of Amount of ABR
Amount Principal of Loans Converted Unpaid Principal
Amount of ABR Converted to ABR Loans to Eurodollar Balance of ABR Notation Made
Date Loans ABR Loans Repaid Loans Loans By
----------- ---------------------- ---------------------- ---------------- ------------------- ------------------ ---------------
----------- ---------------------- ---------------------- ---------------- ------------------- ------------------ ---------------
----------- ---------------------- ---------------------- ---------------- ------------------- ------------------ ---------------
----------- ---------------------- ---------------------- ---------------- ------------------- ------------------ ---------------
----------- ---------------------- ---------------------- ---------------- ------------------- ------------------ ---------------
----------- ---------------------- ---------------------- ---------------- ------------------- ------------------ ---------------
----------- ---------------------- ---------------------- ---------------- ------------------- ------------------ ---------------
88
Schedule B
to Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Unpaid
Interest Period Amount of Amount of Principal
Amount Converted and Eurodollar Principal of Eurodollar Loans Balance of
Amount of to Eurodollar Rate with Respect Eurodollar Loans Converted to ABR Eurodollar Notation
Date Eurodollar Loans Loans Thereto Repaid Loans Loans Made By
-------- ------------------ ------------------ ------------------- ------------------ ------------------ ------------ -----------
-------- ------------------ ------------------ ------------------- ------------------ ------------------ ------------ -----------
-------- ------------------ ------------------ ------------------- ------------------ ------------------ ------------ -----------
-------- ------------------ ------------------ ------------------- ------------------ ------------------ ------------ -----------
-------- ------------------ ------------------ ------------------- ------------------ ------------------ ------------ -----------
-------- ------------------ ------------------ ------------------- ------------------ ------------------ ------------ -----------
-------- ------------------ ------------------ ------------------- ------------------ ------------------ ------------ -----------
-------- ------------------ ------------------ ------------------- ------------------ ------------------ ------------ -----------
89
Exhibit B to the
364-Day Credit Agreement
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement dated as of July 2,
2001 (as amended, supplemented or otherwise modified from time to time, the
"364-Day Credit Agreement"), among CHEVRON XXXXXXXX CHEMICAL COMPANY LLC, a
Delaware limited liability company (the "LLC"), CHEVRON XXXXXXXX CHEMICAL
COMPANY LP, a Delaware limited partnership which is wholly-owned, indirectly, by
the LLC (the "LP"; and together with the LLC, the "Borrowers" and, each, a
"Borrower"), the Lenders parties thereto, Bank of America, N.A., as the
Administrative Agent, and the other agents therein named. Unless otherwise
defined herein, terms defined in the 364-Day Credit Agreement and used herein
shall have the meanings given to them in the 364-Day Credit Agreement.
_____________ (the "Assignor") and ____________ (the "Assignee") agree
as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Transfer Effective Date (as defined below), a ___% interest (the "Assigned
Interest") in and to the Assignor's rights and obligations under the 364-Day
Credit Agreement with respect to the credit facility contained in the 364-Day
Credit Agreement as are set forth on Schedule 1 (the "Assigned Facility"), in a
principal amount for the Assigned Facility as set forth on Schedule 1.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the 364-Day Credit Agreement or any other
instrument or document furnished pursuant thereto or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the 364-Day Credit Agreement, any Note or any other instrument or document
furnished pursuant thereto, other than that the Assignor is the legal and
beneficial owner of the Assigned Facility and the Assignor has not created any
adverse claim upon the interest being assigned by it hereunder and that such
interest is free and clear of any such adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrowers or their Subsidiaries or the performance or
observance by the Borrowers of any of their obligations under the 364-Day Credit
Agreement or any Note or any other instrument or document furnished pursuant
hereto or thereto; and (c) attaches any Notes held by it evidencing the Assigned
Facility and (i) requests that the Administrative Agent, upon request by the
Assignee, exchange any attached Notes for a new Note or Notes payable to the
Assignee and (ii) if the Assignor has retained any interest in the Assigned
Facility, requests that the Administrative Agent exchange any attached Notes for
a new Note or Notes payable to the Assignor, in each case in amounts which
reflect the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Transfer Effective Date).
Exhibit B - page 1
90
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the 364-Day Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 3.5 or 5.2, as available,
thereof and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and
Acceptance; (c) agrees that it will, independently and without reliance upon the
Assignor, the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the 364-Day
Credit Agreement, any Notes or any other instrument or document furnished
pursuant hereto or thereto; (d) appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under the 364-Day Credit Agreement, any Notes or any other instrument
or document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the 364-Day Credit Agreement and will perform in accordance with its terms all
the obligations which by the terms of the 364-Day Credit Agreement are required
to be performed by it as a Lender including, if it is organized under the laws
of a jurisdiction outside the United States, its obligation pursuant to
subsection 2.15(b) of the 364-Day Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be
______, 20__ (the "Transfer Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
acceptance by it and recording by the Administrative Agent pursuant to the
364-Day Credit Agreement, effective as of the Transfer Effective Date (which
shall not, unless otherwise agreed to by the Administrative Agent, be earlier
than five Business Days after the date of such acceptance and recording by the
Administrative Agent).
5. Upon such acceptance and recording, from and after the Transfer
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to the Transfer
Effective Date and to the Assignee for amounts which have accrued subsequent to
the Transfer Effective Date. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Administrative Agent for periods
prior to the Transfer Effective Date or with respect to the making of this
assignment directly between themselves.
6. From and after the Transfer Effective Date, (a) the Assignee shall
be a party to the 364-Day Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and shall be bound by the provisions thereof and (b) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the 364-Day Credit Agreement.
7. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Exhibit B - page 2
91
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
Exhibit B - page 3
92
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE 364-DAY CREDIT AGREEMENT, DATED AS OF JULY 2, 2001,
AMONG
CHEVRON XXXXXXXX CHEMICAL COMPANY LLC, AS A BORROWER, AND
CHEVRON XXXXXXXX CHEMICAL COMPANY LP, AS A BORROWER,
THE SEVERAL LENDERS FROM TIME TO TIME PARTIES THERETO, AND
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
================================================================================
Name of Assignor:
Name of Assignee:
Transfer Effective Date:
-------------------------------------------------------- -----------------------------------------------------------
Principal
Amount Assigned Commitment Percentage Assigned(1)
$ ___.________%
[Name of Assignee] [Name of Assignor]
By: By:
----------------------------------- -----------------------------------
Name: Name:
Title: Title:
--------
1/ Calculate the Commitment Percentage that is assigned to at least 15
decimal places and show as a percentage of the aggregate commitments of
all Banks.
Exhibit B - page 4
93
Accepted: Consented To(2):
BANK OF AMERICA, N.A., as CHEVRON XXXXXXXX CHEMICAL
Administrative Agent and Same Day COMPANY LLC, as a Borrower
Lender
By:
-----------------------
Name:
Title:
By:
---------------------------
Name: CHEVRON XXXXXXXX CHEMICAL
Title: COMPANY LP, as a Borrower
By:
-----------------------
Name:
Title:
----------
2/ Not required during the occurrence and continuation of an Event of
Default under subsection 7.1(g) or (h).
Exhibit B - page 5
94
Exhibit C to the
364-Day Credit Agreement
FORM OF
CLOSING CERTIFICATE
OF
CHEVRON XXXXXXXX CHEMICAL COMPANY LLC
AND CHEVRON XXXXXXXX CHEMICAL COMPANY LP
Reference is made to the 364-DAY CREDIT AGREEMENT (as amended,
supplemented or otherwise modified from time to time, the "364-Day Agreement"),
dated as of July 2, 2001, among Chevron Xxxxxxxx Chemical Company LLC, a
Delaware limited liability company (the "LLC"), and Chevron Xxxxxxxx Chemical
Company LP, a Delaware limited partnership wholly owned indirectly by the LLC
(the "LP"), each as a Borrower, the Lenders, Bank of America, N.A., as the
Administrative Agent, and the other agents therein named. Unless otherwise
indicated, capitalized terms used but not defined herein shall have the
respective meanings set forth in the 364-Day Agreement. This certificate is
being delivered pursuant to Section 4.1(b) of the 364-Day Agreement.
I, X.X. XxXxx, Vice President and Treasurer of each of Chevron Xxxxxxxx
Chemical Company LLC and Chevron Xxxxxxxx Chemical Company LP, HEREBY CERTIFY
that:
(a) Each of the representations and warranties made by the LLC
and the LP in or pursuant to the 364-Day Agreement are true and correct in all
material respects on and as of the date hereof;
(b) No Default or Event of Default has occurred and is
continuing on the date hereof or will occur after giving effect to the
extensions of credit requested to be made on the date hereof; and
(c) Any governmental and third party approvals necessary and
material in connection with the financing contemplated by the 364-Day Agreement
and the continuing operations of the LLC and the LP and their Subsidiaries have
been obtained and are in full force and effect.
Exhibit C - page 1
95
Exhibit C to the
364-Day Credit Agreement
IN WITNESS WHEREOF, I have hereunto signed my name this 2nd day of
July, 2001.
------------------------------------------
Name: X.X. XxXxx
Title: Vice President and Treasurer of
Chevron Xxxxxxxx Chemical Company
LLC and Vice President and
Treasurer of Chevron Xxxxxxxx
Chemical Company LP
Exhibit C - page 2
96
Exhibit D to the
364-Day Credit Agreement
FORM OF
CERTIFICATE OF SECRETARY
OF
CHEVRON XXXXXXXX CHEMICAL COMPANY [LLC][LP]
Reference is made to the 364-DAY CREDIT AGREEMENT (as amended,
supplemented or otherwise modified from time to time, the "364-Day Agreement"),
dated as of July 2, 2001, among Chevron Xxxxxxxx Chemical Company LLC, a
Delaware limited liability company (the "LLC"), and Chevron Xxxxxxxx Chemical
Company LP, a Delaware limited partnership wholly owned indirectly by the LLC
(the "LP"), each as a Borrower, the Lenders, Bank of America, N.A., as the
Administrative Agent, and the other agents therein named. Unless otherwise
indicated, capitalized terms used but not defined herein shall have the
respective meanings set forth in the 364-Day Agreement. This certificate is
being delivered pursuant to Section 4.1(c) of the Three-Year Agreement and
Section 4.1(c) of the 364-Day Agreement.
I, Xxxxx X. Xxxxx, Assistant Secretary of Chevron Xxxxxxxx Chemical
Company [LLC][LP], DO HEREBY CERTIFY that:
(a) annexed hereto as Exhibit A is a true and correct copy of
the Certificate of [Formation of the LLC][Limited Partnership of the LP] as in
effect on [Date] and at all times thereafter through the date hereof;
(b) annexed hereto as Exhibit B is a true and correct copy of
the [Amended and Restated Limited Liability Company Agreement of the
LLC][Agreement of Limited Partnership of the LP] as in effect on [Date] and at
all times thereafter through the date hereof;
(c) annexed hereto as Exhibit C is a true and correct copy of
certain resolutions duly adopted by the [Board of Directors of the LLC][General
Partner of the LP] on [Date(s)], which resolutions are the only resolutions
adopted by the [Board of Directors of the LLC][General Partner of the LP] or any
committee thereof relating to the 364-Day Agreement and the Notes and borrowings
by the [LLC][LP] thereunder and have not been revoked, amended, supplemented or
modified and are in full force and effect on the date hereof; and
(d) each of the persons named below is and has been at all
times since [Date] a duly elected and qualified officer of the [LLC][ LP]
holding the respective office set forth opposite his or her name and the
signature set forth opposite the name of each such person is his or her genuine
signature:
Exhibit D - page 1
97
Exhibit D to the
364-Day Credit Agreement
Name Title Specimen Signature
[Include all officers of the
[LLC][LP] who are signing the
364-Day Agreement, the Notes
or any closing document.]
[Remainder of page left blank intentionally; Signature page to follow.]
Exhibit D - page 2
98
Exhibit D to the
364-Day Credit Agreement
IN WITNESS WHEREOF, I have hereunto signed my name this 2nd day of
July, 2001.
----------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Secretary
Exhibit D - page 3
99
Exhibit E to the
364-Day Credit Agreement
FORM OF OPINION OF BORROWERS' COUNSEL
July 2, 0000
Xxxx xx Xxxxxxx, X.X., as
Administrative Agent for the
Lenders listed on Schedule I hereto
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxx
and
The Agents and Lenders listed
on Schedule I hereto
Re: $700,000,000 364-Day Revolving Credit Facility
Ladies and Gentlemen:
I am the Assistant General Counsel of Chevron Xxxxxxxx Chemical Company
LLC, a Delaware limited liability company (the "LLC") owned equally, indirectly,
by Xxxxxxxx Petroleum Company and Chevron Corporation, and of Chevron Xxxxxxxx
Chemical Company LP, a Delaware limited partnership wholly-owned, indirectly, by
the LLC (the "LP"; and, together with the LLC, the "Borrowers"). I am rendering
this opinion in connection with the preparation, execution and delivery of the
364-Day Credit Agreement, dated as of July 2, 2001 (the "Credit Agreement"),
among the Borrowers, Bank of America, N.A., as Administrative Agent, the other
agents therein named, and the lenders party thereto (collectively, the
"Lenders").
Unless otherwise indicated, capitalized terms used but not defined
herein shall have the respective meanings set forth in the Credit Agreement.
This opinion is furnished to you pursuant to Section 4.1(e) of the Credit
Agreement.
In connection with this opinion, I have examined:
(A) the Credit Agreement, signed by the Borrowers and by the
Administrative Agent, the other agents therein named, and the Lenders; and
Exhibit E - page 1
100
Bank of America, N.A., as
Administrative Agent
July 2, 2001
(B) the Notes delivered on the Closing Date pursuant to the Credit
Agreement (the "Notes").
I also have examined the originals, or duplicates or certified or
conformed copies, of such records, agreements, instruments and other documents
and have made such other investigations as I have deemed relevant and necessary
in connection with the opinions expressed herein. As to questions of fact
material to this opinion, I have relied upon certificates of public officials
and of officers and representatives of the Borrowers. In addition, I have
examined, and have relied as to matters of fact upon, the representations made
in the Credit Agreement.
In rendering the opinions set forth below, I have assumed the
genuineness of all signatures (other than officers of the Borrowers), the legal
capacity of natural persons, the authenticity of all documents submitted to me
as originals, the conformity to original documents of all documents submitted to
me as duplicates or certified or conformed copies, and the authenticity of the
originals of such latter documents.
Based upon and subject to the foregoing, and subject to the
qualifications and limitations set forth herein, I am of the opinion that:
1. The LLC (a) has been duly organized and is validly existing
and in good standing as a limited liability company under the laws of the State
of Delaware, (b) has the limited liability company power and authority to
execute and deliver the Credit Agreement and each Note and to borrow and perform
its obligations thereunder, and (c) has duly authorized, executed and delivered
the Credit Agreement and the Notes.
2. The LP (a) has been duly organized and is validly existing and
in good standing as a limited partnership under the laws of the State of
Delaware, (b) has the partnership power and authority to execute and deliver the
Credit Agreement and each Note and to borrow and perform its obligations
thereunder, and (c) has duly authorized, executed and delivered the Credit
Agreement and the Notes.
3. The execution and delivery by the LLC of the Credit Agreement
and each Note, its borrowings in accordance with the terms of the Credit
Agreement and performance of its payment and other obligations thereunder will
not result in any violation of (1) its Certificate of Formation or its Amended
and Restated Limited Liability Company Agreement, or (2) assuming that proceeds
of borrowings will be used in accordance with the terms of the Credit Agreement,
any Federal or New York statute or the Delaware Limited Liability Company Act or
any rule or regulation issued pursuant to any New York or Federal statute or the
Delaware Limited Liability Company Act.
Exhibit E - page 2
101
Bank of America, N.A., as
Administrative Agent
July 2, 2001
4. The execution and delivery by the LP of the Credit Agreement
and each Note, its borrowings in accordance with the terms of the Credit
Agreement and performance of its payment and other obligations thereunder will
not result in any violation of (1) its Certificate of Limited Partnership or its
Agreement of Limited Partnership, or (2) assuming that proceeds of borrowings
will be used in accordance with the terms of the Credit Agreement, any Federal
or New York statute or the Delaware Revised Uniform Limited Partnership Act or
any rule or regulation issued pursuant to any New York or Federal statute or the
Delaware Revised Uniform Limited Partnership Act.
5. No consent, approval, authorization, order, filing,
registration or qualification of or with any Federal or New York governmental
agency or body or any Delaware governmental agency or body acting pursuant to
the Delaware Limited Liability Company Act or the Delaware Revised Uniform
Limited Partnership Act is required for the execution and delivery by either
Borrower of the Credit Agreement and each Note, the borrowings by either
Borrower in accordance with the terms of the Credit Agreement and each Note or
the performance by the Borrowers of their payment obligations under the Credit
Agreement and each Note.
6. The Credit Agreement and each Note constitute the valid and
legally binding obligation of each Borrower, enforceable against such Borrower
in accordance with its terms.
7. Neither Borrower is an "investment company," "company" or a
company "controlled" by an "investment company" within the meaning of and
subject to regulation under the Investment Company Act of 1940, as amended.
In issuing my opinion in paragraph 6, I have assumed that the Credit
Agreement is a valid and legally binding obligation of each of the Lenders
parties thereto.
My opinion in paragraph 6 above is subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws of general application relating to or affecting creditors'
rights generally, (ii) general equitable principles (whether considered in a
proceeding in equity or at law) and (iii) an implied covenant of good faith and
fair dealing.
I express no opinion with respect to: (a) the effect of any provision
of the Credit Agreement which is intended to permit modification thereof only by
means of an agreement signed in writing by the parties thereto; (b) the effect
of any provision of the Credit Agreement insofar as it provides that any Person
purchasing a participation from a Lender or
Exhibit E - page 3
102
Bank of America, N.A., as
Administrative Agent
July 2, 2001
other Person may exercise set-off or similar rights with respect to such
participation or that any Lender or other Person may exercise set-off or similar
rights other than in accordance with applicable law; (c) the effect of any
provision of the Credit Agreement imposing penalties or forfeitures; (d) the
enforceability of any provision of the Credit Agreement to the extent that such
provision constitutes a waiver of illegality as a defense to performance of
contract obligations; and (e) the effect of any provision of the Credit
Agreement relating to indemnification or exculpation in connection with
violations of any securities laws or relating to indemnification, contribution
or exculpation in connection with willful, reckless or criminal acts or gross
negligence of the indemnified or exculpated Person or the Person receiving
contribution.
In connection with the provisions of the Credit Agreement whereby the
parties submit to the jurisdiction of the courts of the United States of America
located in the State of New York, I note the limitations of 28 U.S.C. 1331 and
1332 on subject matter jurisdiction of the Federal courts.
I do not express any opinion herein concerning any law other than the
law of the State of New York, the Federal law of the United States, the Delaware
Limited Liability Company Law and the Delaware Uniform Limited Partnership Act.
This opinion letter is rendered to you in connection with the
above-described transactions. This opinion letter may not be relied upon by you
for any other purpose, or relied upon by, or furnished to, any other person,
firm or corporation without my prior written consent.
Very truly yours,
Xxxxxxx Xxxxxxx
Exhibit E - page 4
103
Bank of America, N.A., as
Administrative Agent
July 2, 2001
Schedule I
to Exhibit E
SCHEDULE I
THE ADMINISTRATIVE AGENT AND THE LENDERS
Bank of America, N.A.,
as Administrative Agent and as a Lender
The Chase Manhattan Bank
ABN Amro Bank N.V.
The Royal Bank of Scotland plc
Barclays Bank PLC
The Bank of New York
Sumitomo Mitsui Banking Corporation
Westdeutsche Landesbank Girozentrale, New York Branch
Bayerische Landesbank Girozentrale, Cayman Islands Branch
The Industrial Bank of Japan, Limited, New York Branch
The Fuji Bank, Limited
Citibank, N.A.
Banca Nazionale del Lavoro S.p.A., New York Branch
The Bank of Tokyo-Mitsubishi, Ltd.
Bank One, N.A.
IntesaBci New York Branch
Exhibit E - page 5
104
Bank of America, N.A., as
Administrative Agent
July 2, 2001
Riyad Bank, Houston Agency
Banca Monte dei Paschi di Siena S.p.A.
Suntrust Bank
Banca di Roma - Chicago Branch
Exhibit E - page 6
105
Exhibit F to the
364-Day Credit Agreement
FORM OF BORROWING REQUEST
Bank of America, N.A.,
as Administrative Agent
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxxx
[Date(1)]
Dear Sirs and Madams:
The undersigned, Chevron Xxxxxxxx Chemical Company [LLC][LP] (the
"Requesting Borrower") refers to the 364-Day Credit Agreement dated as of July
2, 2001 (as it may be amended, restated, supplemented or otherwise modified from
time to time, the "364-Day Credit Agreement"), among Chevron Xxxxxxxx Chemical
Company LP and Chevron Xxxxxxxx Chemical Company LLC, each as a Borrower, the
several Lenders from time to time party thereto, Bank of America, N.A., as
Administrative Agent, and the other agents therein named. Terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
the 364-Day Credit Agreement.
The Requesting Borrower hereby gives you notice pursuant to Section 2.3
of the 364-Day Credit Agreement that it requests a [Eurodollar][ABR] Loan under
the 364-Day Credit Agreement, and in that connection sets forth below the terms
on which such [Eurodollar][ABR] Loan is requested to be made:
(A) [the amount to be borrowed(2)],
(B) [the requested Borrowing Date],
(C) [Interest rate basis(3)] and
----------
1/ Prior to 1:00 P.M., New York City time, at least three Business Days
prior to the requested Borrowing Date, in the case of Eurodollar Loans,
and prior to 1:00 P.M., New York City time, on the Borrowing Date, in
the case of ABR Loans.
2/ In an aggregate principle amount of the lesser of (1) $10,000,000 or a
whole multiple of $1,000,000 in excess thereof, and (2) the Available
Commitments.
3/ Eurodollar Rate, ABR Rate or a combination thereof. If no election as
to the Type of borrowing is specified, the borrowing shall be an ABR
borrowing.
Exhibit F - page 1
106
(D) [length of the Interest Period for each Eurodollar Loan
requested herein].
Upon acceptance of any or all of the Loans made by the Lenders in
response to this request, the Requesting Borrower shall be deemed to have
represented and warranted that the conditions specified in Section 4.2 of the
364-Day Credit Agreement have been satisfied.
Very truly yours,
CHEVRON XXXXXXXX CHEMICAL
COMPANY [LLC][LP]
By:
----------------------------------
Name:
Title:
Exhibit F - page 2
107
Exhibit G to the
364-Day Credit Agreement
FORM OF EXEMPTION CERTIFICATE
Reference is made to the 364-Day Credit Agreement, dated as of July 2,
2001 (as amended, supplemented or otherwise modified from time to time, the
"364-Day Credit Agreement"), among Chevron Xxxxxxxx Chemical Company LP and
Chevron Xxxxxxxx Chemical Company LLC, each as a Borrower, the several Lenders
from time to time party thereto, Bank of America, N.A., as Administrative Agent,
and the other agents therein named. Unless otherwise defined herein, terms
defined in the 364-Day Credit Agreement and used herein shall have the meanings
given to them in the 364-Day Credit Agreement. [Name of Non-U.S. Lender] (the
"Non-U.S. Lender") is providing this certificate pursuant to Section 2.16(b) of
the 364-Day Credit Agreement. The Non-U.S. Lender hereby represents and warrants
that:
1. The Non-U.S. Lender is the sole record and beneficial owner
of the Loans in respect of which it is providing this certificate.
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). In
this regard, the Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or
other legal requirements as a bank in any jurisdiction; and
(b) the Non-U.S. Lender has not been treated as a bank for
purposes of any tax, securities law or other filing or submission made to any
Governmental Authority, any application made to a rating agency or qualification
for any exemption from tax, securities law or other legal requirements.
3. The Non-U.S. Lender is not a 10-percent shareholder of
either Borrower within the meaning of Section 881(c)(3)(B) of the Code.
4. The Non-U.S. Lender is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code.
Exhibit G - page 1
108
IN WITNESS WHEREOF, the undersigned has duly executed this certificate.
[NAME OF NON-U.S. LENDER]
By:
----------------------------------
Name:
Title:
Date:
--------------------------------
Exhibit G - page 2
109
Exhibit H to the
364-Day Credit Agreement
FORM OF SAME DAY BORROWING REQUEST
Bank of America, N.A.,
as Administrative Agent
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxxx
[Date(1)]
Dear Sirs and Madams:
The undersigned, Chevron Xxxxxxxx Chemical Company [LLC][LP] (the
"Requesting Borrower") refers to the 364-Day Credit Agreement dated as of July
2, 2001 (as it may be amended, restated, supplemented or otherwise modified from
time to time, the "364-Day Credit Agreement"), among Chevron Xxxxxxxx Chemical
Company LP and Chevron Xxxxxxxx Chemical Company LLC, each as a Borrower, the
several Lenders from time to time party thereto, Bank of America, N.A., as
Administrative Agent, and the other agents therein named. Terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
the 364-Day Credit Agreement. The Requesting Borrower hereby gives you notice
pursuant to Section 2.4 of the 364-Day Credit Agreement that it requests a Same
Day Loan under the 364-Day Credit Agreement, and in that connection sets forth
below the terms on which such Same Day Loan is requested to be made:
(A) Date of Same Day Loan (which is a Business Day),
(B) Principal Amount of Same Day Loan(2), and
(C) Length of Interest Period for each Same Day Loan requested
herein.(3)
Upon acceptance of any or all of the Loans made by the Same Day Lender
in response to this request, the Requesting Borrower shall be deemed to have
represented and warranted that the conditions specified in Section 4.2 of the
Credit Agreement have been satisfied.
----------
1/ Not later than 2:00 P.M., New York City time, on the day of a proposed
Same Day Loan.
2/ In an aggregate principal amount of the lesser of (1) $1,000,000, and
(2) the then Available Commitments with respect to Same Day Loans.
3/ Commences on the Borrowing Date and ends (a) on a Business Day not
later than 15 days after such Borrowing Date, or (b) if an Interest
Period is not specified, on the first Business Day after the Borrowing
Date.
Exhibit H - page 1
110
Very truly yours,
CHEVRON XXXXXXXX CHEMICAL
COMPANY [LLC][LP]
By:
----------------------------------
Name:
Title:
111
Exhibit I to the
364-Day Credit Agreement
FORM OF CONVERSION OR CONTINUATION REQUEST
Bank of America, N.A.,
as Administrative Agent
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxxx
[Date]
Dear Sirs and Madams:
The undersigned, Chevron Xxxxxxxx Chemical Company [LLC][LP] (the
"Requesting Borrower"), refers to the 364-Day Credit Agreement dated as of July
2, 2001 (as it may be amended, restated, supplemented or otherwise modified from
time to time, the "364-Day Credit Agreement"), among Chevron Xxxxxxxx Chemical
Company LP and Chevron Xxxxxxxx Chemical Company LLC, each as a Borrower, the
several Lenders from time to time party thereto, Bank of America, N.A., as
Administrative Agent, and the other agents therein named. Terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
the 364-Day Credit Agreement.
Pursuant to Section 2.7 of the 364-Day Credit Agreement, this Notice of
Conversion/Continuation (the "Notice") represents the Requesting Borrower's
irrevocable election to [insert one or more of the following]:
1 Convert $___________ in aggregate principal amount of ABR Loans to
Eurodollar Loans on _________, 20__(1). The initial Interest Period for such
Eurodollar Loans is requested to be a ______ month period.
2 Convert $_________ in aggregate principal amount of Eurodollar Loans
with a current Interest Period ending _________, 20__ to ABR Loans on _________,
20__(2).
3 Continue as Eurodollar Loans $_________ in aggregate principal amount
of Eurodollar Loans with a current Interest Period ending _________, 20__(3).
The succeeding Interest Period is requested to be a _____ month period.
1/ Not later than three Business Days' prior irrevocable notice.
2/ Not later than 1:00 PM, New York City time, on a Business Day;
provided, that any such conversion of Eurodollar Loans may only be made
on the last day of an Interest Period with respect thereto.
3/ Only may be continued as such upon the expiration of the then current
Interest Period with respect thereto.
Exhibit I - page 1
112
Very truly yours,
CHEVRON XXXXXXXX CHEMICAL COMPANY
[LLC][LP]
By:
-------------------------------
Name:
Title:
Exhibit I - page 2
